JIMMY RUIZ HEREDIA EDGAR EMMANUEL SERRANO MONDRAGON v. SEWON AMERICA INC TOTAL EMPLOYEE SOLUTION SUPPORT LLC (2025)

ORDER

This case comes before the Court on Chief Magistrate Judge Russell G. Vineyard's non-final report and recommendation (“R&R”) [34], recommending that Defendant Total Employee Solution Support, LLC's (“TESS”) motion [26] to dismiss and Sewon America, Inc.'s partial motion [27] to dismiss be denied. Sewon filed objections to the R&R to which Plaintiffs replied.

I. Background 1

This case arises from Plaintiffs' employment at an automotive production plant owned by Sewon in LaGrange, Georgia. Both named Plaintiffs are Mexican citizens and skilled engineers and technicians who accepted job offers at the Sewon plant to work in their processional capacities.

In January 2021, Plaintiff Edgar Emmanuel Serrano Mondragon (“Serrano”) applied for a maintenance engineer position at Sewon after meeting with Sewon representatives at a job fair in Mexico. Serrano received a job offer on August 19 for the maintenance engineer position with an annual wage of $36,000.

In February 2021, Plaintiff Jimmy Ruiz Heredia (“Ruiz”) applied for the mechanical engineer position via a job opening posted by TESS, a labor recruitment company.² On June 15, Ruiz received an email from TESS with an offer letter from Sewon dated June 14, offering him the position of technical engineer. His offer letter stated that he would be paid an hourly wage of $10.70 for the first three months, after which time his hourly rate would be increased by $0.50. The hourly rate was to be increased an additional $0.50 every six months until the rate reached the maximum hourly rate of $16.80. The offer letter was on Sewon letterhead and signed by Sewon's secretary and chief financial officer. Ruiz returned the signed offer letter to TESS's representative.

Once the offers were accepted, Sewon assisted Serrano and TESS assisted Ruiz with securing their required nonimmigrant TN visas so they could work in the United States.³ TESS and Sewon provided support letters, both on Sewon's letterhead, to the U.S. Embassy in Mexico City, Mexico. Both support letters stated that each position “is professional and specialized in nature and falls within the schedule of permitted TN occupations – Engineer – authorized by NAFTA.” [34] at 9, 11 (quotations omitted).

Following interviews at the U.S. Consulate, Plaintiffs obtained their TN visas and moved to the United States to begin working at the Sewon plant.⁴

Plaintiffs allege that upon beginning work they were asked to perform manual labor on an assembly line rather than the technical services they were promised and were required to perform to obtain a TN visa. They also allege that they were required to work overtime and were underpaid compared to Sewon's American employees.

Due to the alleged bait-and-switch, on July 21, 2024, Plaintiffs filed a first amended complaint, asserting a violation of the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act, O.C.G.A. § 16-14-1 et seq. against TESS and Sewon. Plaintiffs also assert a breach of contract claim and a Fair Labor Standards Act claim against Sewon.

On August 21, TESS filed a motion [26] to dismiss and Sewon filed a partial motion [27] to dismiss.⁵ On December 11, Judge Vineyard issued the R&R, recommending that both motions to dismiss be denied. Sewon has filed objections to the R&R.

II. Legal Standard

A. The Magistrate Judge's R&R

A district judge has a duty to conduct a “careful and complete” review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. Unit B 1982)). This review may take different forms, however, depending on whether there are objections to the R&R. The district judge must “make a de novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R&R to which no objection is made need only be reviewed for “clear error.” Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006) (per curiam) (quoting Diamond v. Colonial Life & Accident Ins., 416 F.3d 310, 315 (4th Cir. 2005)).⁶

“Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court.” Nettles, 677 F.2d at 410 n.8. “This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act.” Id. at 410.

After conducting a complete and careful review of the R&R, the district judge “may accept, reject, or modify” the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at 732. The district judge “may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).

B. Motion to Dismiss

To survive a Federal Rule of Civil Procedure 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012) (quoting id.). The Supreme Court has explained this standard as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted) (quoting Twombly, 550 U.S. at 556); see also Resnick v. AvMed, Inc., 693 F.3d 1317, 1324–25 (11th Cir. 2012).

Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56 (citations omitted). “[A] formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citation omitted). While all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011), the Court need not accept as true the plaintiff's legal conclusions, including those couched as factual allegations, Iqbal, 556 U.S. at 678.

Accordingly, evaluation of a motion to dismiss requires two steps: (1) eliminate any allegations in the pleading that are merely legal conclusions, and (2) where there are well-pleaded factual allegations, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

Plaintiffs bring federal and state RICO claims premised on fraud, so they must meet the heightened pleading standards under Federal Rule of Civil Procedure 9(b) for those allegations. Under Rule 9(b), the party alleging fraud must “state with particularity the circumstances constituting fraud or mistake.” This rule serves the dual purpose of ensuring that a complaint “alert[ ] defendants to the ‘precise misconduct with which they are charged’ and protecting defendants against spurious charges of immoral and fraudulent behavior.” Ziemba v. Cascade Int'l, Inc., 256 F.3ed 1194, 1202 (11th Cir. 2001) (quoting Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988)).

To satisfy Rule 9(b) for RICO claims, specifically, Plaintiffs must allege “(1) the precise statements, documents, or misrepresentations made; (2) the time and place of and person responsible for the statement; (3) the content and manner in which the statements misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud.” Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1316–17 (11th Cir. 2007) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1381 (11th Cir. 1997)).

III. Discussion

Judge Vineyard's R&R recommends denying TESS's motion [26] to dismiss and Sewon's partial motion [27] to dismiss.⁷

Plaintiffs assert a Georgia RICO claim against TESS and Sewon. TESS did not object to the R&R, so the Court reviews the recommendations as to TESS for clear error. The Court has conducted a careful and complete review of the R&R and finds no clear error in its factual or legal conclusions as to TESS. Accordingly, the Court will adopt the R&R's recommendation that TESS's motion [26] to dismiss be denied.

Sewon objects to the R&R, contending that the Georgia RICO claim and the breach of contract claim against it cannot proceed. With respect to the RICO claim, Sewon contends that the R&R erroneously concludes that Plaintiffs have standing to assert their claim. As to the breach of contract claim, Sewon contends that Plaintiffs fail to establish a legally cognizable contract.

A. Georgia RICO Claim

To support their RICO claim, Plaintiffs allege that Defendants formed an association-in-fact enterprise that “existed for the common purpose of securing cheap manual labor to work at the Sewon plant and to profit from such labor.” [25] ¶ 208.

Georgia's RICO statute, O.C.G.A. § 16-14-4, includes three subsections. Subsection (a) makes it unlawful for “any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain ․ any interest in or control of any enterprise, real property, or personal property of any nature, including money.” Subsection (b) makes it unlawful for “any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” Subsection (c) makes it unlawful for “any person to conspire or endeavor to violate any of the provisions of subsections (a) or (b).”

“Because the Georgia RICO Act was modeled after the federal statute, [Georgia courts have] found federal authority persuasive in interpreting the Georgia RICO statute.” Williams Gen. Corp. v. Stone, 614 S.E.2d 758, 760 (Ga. 2005) (citations omitted). But even though “[f]ederal RICO and Georgia RICO have many similarities, ․ they also have ‘a number of significant differences.’ ” Lechter v. Aprio, LLP, 565 F. Supp. 3d 1279, 1316 (N.D. Ga. 2021) (quoting Chesapeake Emps.' Ins. Co. v. Eades, 77 F. Supp. 3d 1241, 1256 (N.D. Ga. 2015)). An important distinction between the federal RICO statute and Georgia's RICO statute is that subsection (a) does not require proof of an enterprise. Cobb Cnty. v. Jones Grp. P.L.C., 460 S.E.2d 516, 520 (Ga. Ct. App. 1995). Subsection (b), however, does require proof of an enterprise. See Kimbrough v. State, 799 S.E.2d 229, 233 (Ga. 2017).

1. Standing

Sewon contends that the R&R “erred in concluding that Plaintiffs plausibly alleged that Sewon's alleged conduct caused their RICO injuries.” [37] at 3.⁸ Sewon's position is that the RICO claim against it must be dismissed because Plaintiffs did not establish that “they would not have incurred [their] injuries but for the Defendants' alleged misrepresentations.” Id. at 4. Sewon also contends that the R&R erroneously concludes that Plaintiffs' lost wages are “losses to business or property” under the Georgia RICO Act.

In response, Plaintiffs contend that they did establish a direct causal link and that there is substantial case law establishing that lost wages support standing under RICO.

a. Causation

The central question of RICO proximate-cause analysis is “whether [Defendants'] alleged violation[s] led directly to the plaintiff's injuries.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006). To successfully satisfy the proximate-cause requirement, there must be “some direct relation between the injury asserted and the injurious conduct alleged,” and links that are “too remote, purely contingent, or indirect [are] insufficient.” Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9 (2010) (quoting Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268, 271, 274 (1992)); Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1349 (11th Cir. 2016) (“The connection between racketeering activity and the injury can be neither remote, purely contingent, nor indirect.” (citations omitted)).

Sewon contends that Plaintiffs cannot establish a direct link between the alleged violations and the injuries because “the decision to admit or exclude an alien from the United States is within the plenary power of Congress.” [37] at 4. According to Sewon, “[t]he contingency of the U.S.'s grant of the visa severs any causal link.” Id. at 5. Sewon cites no case law to support this contention, nor does it distinguish the facts of this case from the many cases that are factually analogous where causation was found.

This Court dealt with a similar situation just last year in Aquino v. Mobis, 739 F. Supp. 3d 1152 (N.D. Ga. 2024) (Batten, C.J.). In that purported fraudulent recruiting scheme, multiple defendants contested whether the plaintiffs had standing to bring a RICO claim. Although defendants' challenge to standing in Aquino was different, the same reasoning applies. Just like Aquino, Plaintiffs' allegations here support “only one causal link” in that TESS and Sewon were “allegedly working towards the common goal of committing fraud, which ultimately injured Plaintiffs.” Aqunio, 739 F. Supp. 3d at 1183.

This causal link is established regardless of whether the U.S. granted Plaintiffs their visas because Plaintiffs sufficiently alleged “some direct relation between the injury asserted and the injurious conduct alleged.” Anza, 547 U.S. at 464 (quoting Holmes, 503 U.S. at 268). In other words, Plaintiffs' allegations that TESS and Sewon prepared them for their interviews with the U.S. Consulate and submitted the support letters necessary to acquire the TN visas provide sufficient evidence of “some direct relation” to conclude that causation has been pled.

Lastly, as noted in Aquino, “[t]he only people who suffered harm because of this alleged scheme are those who were hired through the scheme—there is ‘no more immediate victim [ ] better suited to sue.’ ” Aqunio, 739 F. Supp. 3d at 1184 (quoting Albert v. Global Tel*Link, 68 F.4th 906, 914 (4th Cir. 2023) (quotation omitted)); see also Hemi, 559 U.S. at 11–12 (holding that “whether better situated plaintiffs would have an incentive to sue” is a “consideration [the Supreme Court has] highlighted as relevant to the RICO ‘direct relationship’ requirement” (citation omitted)).

Sewon also objects to the R&R's conclusion regarding causation as to Plaintiff Ruiz, contending that the R&R “fails to adequately consider the admitted and contradictory facts [which show] that Plaintiff Ruiz incurred and/or agreed to incur these costs prior to any alleged purported conduct.” [37] at 5. According to Sewon, “Plaintiff Ruiz agreed to incur the visa processing fees and to attend the U.S. Consulate interviews, and continued to seek employment in the United States with Sewon, prior to ever receiving any purportedly fraudulent TN Visa support letter or second offer letter.” Id. Because of these purported inconsistencies, Sewon concludes that Plaintiff Ruiz cannot establish causation since he agreed to work at Sewon before receiving the support letter or his second offer letter.

The Court has considered Sewon's objection but finds that Plaintiffs have not pled contradictory facts and that Ruiz's allegations establish causation. Ruiz's June 14, 2021, offer letter provided his hourly wage and his position title, “Technical Engineer.” [25-3] at 4. Ruiz alleges that he received the offer letter, signed the letter on June 16, and then TESS began to “coordinate[ ] Mr. Ruiz's employment with Sewon by providing information and support relating to his TN visa application to the U.S. Consulate in Mexico.” [25] ¶¶ 80–83. Once employed at the Sewon plant, Ruiz alleges that he was merely “a ‘picker’ on an assembly line.” Id. at ¶ 113. Ruiz's allegations establish that the job he thought he was getting is a far cry from the job he got.

The Court finds that causation is adequately alleged despite TESS and Sewon providing additional details to Ruiz after he received the initial offer letter. The Court does note that Ruiz's June 21 offer letter states he will be an “Industrial Engineer” and provides an annual salary rather than an hourly salary, but those differences can hardly be considered inconsistent or contradictory. As the R&R correctly notes, these differences create “genuine disputes of material fact ․ as to whether [p]laintiffs were reasonably misled by the [initial and] subsequent offer letters,” but that issue is to be addressed at the summary judgment phase. [34] at 48 n.23 (alterations in original) (quoting de la Fuente v. Columbia Recycling Corp., 704 F. Supp. 3d 1333, 1341 (N.D. Ga. 2023)). The allegations support a finding that the scheme to fraudulently recruit Ruiz began back in January 2021 when he saw a job posted by TESS and continued through June 2021 when he was offered the position. The allegations are sufficient.

For the foregoing reasons, the Court will overrule Sewon's objections and adopt the R&R's conclusion as to causation.

b. Injuries

Plaintiffs allege four categories of damages: (1) travel costs to and from the U.S. Consulate for the mandated TN visa interviews; (b) $160 in visa processing fees per visa; (3) costs to purchase essential furniture and household goods upon arrival in the U.S.; and (4) lost wages.

Sewon contends that Plaintiffs cannot claim lost wages and that the R&R erred in concluding otherwise. The error is premised on the R&R's “incorrect presumption that Plaintiffs had a legally cognizable contract and thereby a contractual right” to the listed compensation. [37] at 7.

For the reasons explained in Section III.B., the Court agrees with the R&R's determination that Plaintiffs had a legally cognizable contract, and that Plaintiffs pled a viable claim for lost wages. As such, Sewon's objection on this point is overruled, and the R&R's conclusion is adopted by the Court.

2. Conspiracy

Expanding on its argument that Plaintiffs did not have standing to assert a RICO claim, Sewon also contends that the RICO conspiracy claim against it must fail. The Court overrules this objection and finds that the R&R properly concludes that Plaintiffs have sufficiently pled that Defendants conspired to violate the Georgia RICO Act.

“Defendants may be liable for conspiracy to violate Georgia RICO ‘if they knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts.’ ” Turk v. Morris, Manning & Martin, LLP, 593 F. Supp. 3d 1258, 1310 (N.D. Ga. 2022) (quoting Wylie v. Denton, 746 S.E.2d 689, 693 (Ga. Ct. App. 2013)). “To establish a conspiracy to violate Georgia RICO ․, Plaintiffs․ have to show that the[ ] Defendants were knowing and willing participants in the alleged conspiracy rather than independent actors who were just ‘going about [their] own business.’ ” Id. at 1312–13 (last alteration in original) (quotation omitted).

“There is no apparent substantive difference between the requirements for establishing a conspiracy to violate [a] Federal RICO claim and a conspiracy to violate [a] Georgia RICO claim.” Lechter, 565 F. Supp. 3d at 1332.

“The existence of the conspiracy agreement does not have to be proven by direct evidence. Instead, it can be inferred from ‘the conduct of the alleged participants or from circumstantial evidence of the scheme.’ ” United States v. LeQuire, 943 F.2d 1554, 1562 (11th Cir. 1991) (quoting United States v. Ard, 731 F.2d 718, 724 (11th Cir. 1984)); see Cisneros v. Petland, Inc., 972 F.3d 1204, 1220 (11th Cir. 2020) (“A RICO conspiracy can be found through ‘the conduct of the alleged participants or from circumstantial evidence of a scheme.’ ” (quoting United States v. Browne, 505 F.3d 1229, 1264 (11th Cir. 2007))).

As discussed above, the Court concludes that the R&R correctly found that Plaintiffs have plausibly alleged that Defendants violated the Georgia RICO Act. That necessarily means that the Court concludes that Plaintiffs alleged Defendants “agreed to violate ․ the substantive provisions of the RICO laws.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1269 (11th Cir. 2004). The Court adopts the R&R's conclusion and finds that Plaintiffs adequately allege that Defendants conspired to violate the Georgia RICO Act.

B. Breach of Contract Claim

The R&R recommends denying Sewon's partial motion to dismiss as to the breach of contract claim against it, finding that Plaintiffs' offer letters in conjunction with the support letters create an enforceable contract and that Plaintiffs did not waive their right to sue on the contract by continuing to work at the Sewon plant.

Sewon objects to the R&R's recommendation on two grounds: (1) the R&R failed to address its arguments surrounding the scope of the at-will employment relationship, and (2) the R&R incorrectly concluded that offer letters and support letters created a contract.

In response, Plaintiffs contend that the R&R correctly applied the law on the at-will employment relationship and correctly decided that the support letters in conjunction with the offer letters form the cognizable contracts.

1. Legally Cognizable Contract

Sewon objects to the R&R's finding that the offer letters that were sent in conjunction with the support letters create a legally cognizable contract that supports Plaintiffs' breach of contract claim. Sewon's objection boils down to two points: (1) the offer letters standing alone are too indefinite to be a contract; and (2) the support letters cannot be used as contemporaneous writings to supply the definite terms that the offer letters are lacking. Both objections are meritless.

First, as the Plaintiffs acknowledge in their response to Sewon's objections, no one argues or concludes that the offer letters alone are sufficient: “Instead, ․ [Plaintiffs] allege[ ] that the TN visa support letters provided the material terms of the job offers made to Plaintiffs in writing.” [40] at 12 (citation omitted). The allegations in their first amended complaint support Plaintiffs' argument. See [25] ¶ 352.

Second, the Court disagrees with Sewon's contention that the support letters are not contemporaneous writings.

Plaintiffs aver that their “written offer letters, together with terms provided in the Support Letters” contain “material terms of their employment, including that these jobs would be highly skilled engineer positions paying a certain rate of pay which would be eligible for the TN visa.” [25] ¶ 352. To the extent that the terms of the offer letters are “incomplete, vague, indefinite[,] or uncertain,” the support letters provide the additional details. Massih v. Mulling, 610 S.E.2d 657, 659 (Ga. Ct. App. 2005) (quotation omitted).⁹

“A written contract can consist of multiple documents ‘as long as all the necessary terms are contained in signed contemporaneous writings.’ ” Bd. of Regents of Univ. Sys. of Ga. v. Winter, 771 S.E.2d 201, 205–06 (Ga. Ct. App. 2015) (quoting Baker v. Jellibeans, Inc., 314 S.E.2d 874 (Ga. 1984), overruled on other grounds, Rivera v. Washington, 784 S.E.2d 775 (Ga. 2016)).

Under Georgia law, a contemporaneous writing must be signed, contemporaneous, and “the party seeking to introduce the signed contemporaneous writing must show that it is necessary to complete the signed document.” Laun v. Bd. of Regents of Univ. Sys. of Ga., No. 1:18-cv-33, 2019 WL 4694940, at *19 (S.D. Ga. Sept. 25, 2019). Under Georgia law, contemporaneous means “reasonably contemporaneous” and does not require “perfect or absolute coincidence in point of time.” Winter, 771 S.E.2d at 206 (quotation omitted).

Assuming the factual averments of the amended complaint as true and viewing its allegations in the light most favorable to Plaintiffs, the Court is satisfied that Plaintiffs have presented sufficient evidence of a contract to move forward with their breach of contract claim. Plaintiffs each received an offer letter from Sewon that was signed by Nathan Jung, Sewon's chief financial officer and general manager. Ruiz's original offer letter was dated June 14, 2021, and his second offer letter was dated June 21, 2021. Serrano's offer letter was dated August 19, 2021. Ruiz's support letter to the U.S. Embassy is dated June 21, 2021, and Serrano's is dated August 20, 2021.

The support letters satisfy all the requirements under Georgia law to be considered contemporaneous writings. They were signed by Sewon's CFO and general manager; they are being introduced to provide the material terms of employment that were not included in the offer letters; and they are sufficiently contemporaneous with the offer letters. The support letters were sent either the same day or the day after the offer letters. This interval easily satisfies the “reasonably contemporaneous” requirement. Cf. Winter, 771 S.E.2d at 206 (holding that “a nine-week interval between the execution of documents strongly suggests that those documents are not contemporaneous” (citation omitted)).

2. At-Will Employment

It is undisputed that Plaintiffs were at-will employees. However, Sewon contends that Judge Vineyard ignored case law regarding what is required to bring a breach of contract claim that results from a change in the terms and conditions of employment. Sewon argues that case law establishes that “[P]laintiffs must show that these pre-employment promises constituted an agreement separate and distinct from the at-will employment relationship.” [37] at 9–10 (quoting Wade v. Chase Manhattan Mortg. Corp., 994 F. Supp. 1369, 1378 (N.D. Ala. 1997), aff'd sub nom. Wade v. Chem. Residential, 132 F.3d 1461 (11th Cir. 1997)). According to Sewon, the R&R ignored this requirement and allowed the breach of contract claim to proceed despite Plaintiffs failing to make the requisite showing.

Despite Sewon's objections to the contrary, the R&R did address Sewon's argument. It acknowledged that an at-will employment relationship “does not give an employee a contractual right to remain employed,” but the “ ‘at-will employment relationship can give rise to certain contractual rights’ and ‘the original terms for compensation are enforceable for that work actually performed under the contract.’ ” [34] at 57–58 (quoting de la Fuente, 704 F. Supp. 3d at 1338–39).

Sewon's reliance on Wade is misplaced. First, Wade applied Alabama law, and the Court cannot find a case where its reasoning is applied to Georgia law. Although affirmed by the Eleventh Circuit, the Eleventh Circuit's affirmation is an unpublished table opinion that is not binding on this Court. See Wade, 132 F.3d at 1461; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”).

Secondly, Georgia courts routinely allow breach of contract claims by at-will employees to proceed for some types of claims. See Shelnutt v. Mayor, 776 S.E.2d 650, 655 (Ga. Ct. App. 2015) (“Although terminable-at-will employment does not give an employee a contractual right to remain employed, an at-will employment relationship can give rise to certain contractual rights.” (citation omitted)).

Here, Plaintiffs bring a breach of contract claim premised on Sewon not delivering the promised job with the promised terms. See [25] ¶¶ 354, 356.

“In Georgia, at-will employees who assert that their employer failed to pay promised wages may bring a breach of contract claim.” Cha v. Kani House Japanese Rest., No. 1:16-cv-485, 2017 WL 11616365, at *2 (N.D. Ga. Jan. 30, 2017) (citing Sims v. Bayside Cap., Inc., 755 S.E.2d 520, 523 (Ga. Ct. App. 2014)). “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” Id. (quoting Dewrell Sacks, LLP v. Chi. Title Ins. Co., 749 S.E.2d 802, 806 (Ga. Ct. App. 2013)).

Here, the contracts (the offer letter with the support letter) state that Plaintiffs would receive $36,000. Plaintiff Ruiz alleges that at the time of his termination he was earning an annualized salary of $31,200. [25] ¶ 138. Plaintiff Serrano, still employed by Sewon, earns an annualized salary of $31,720. Id. ¶ 197. Both salaries are less than the $36,000 salary listed in the offer letters and support letters. These allegations are sufficient to survive a motion to dismiss. See Cha, 2017 WL 11616365, at *3.

Therefore, regardless of whatever bar to breach-of-contract claims is set forth in Wade, Judge Vineyard did not err by allowing Plaintiffs' breach of contract claim to proceed.

IV. Conclusion

For the foregoing reasons, the Court adopts the R&R [34] as its Order. TESS's motion [26] to dismiss and Sewon's partial motion [27] to dismiss are DENIED.

IT IS SO ORDERED this 12th day of February, 2025.

JIMMY RUIZ HEREDIA, individually and on behalf of all others similarly situated, et al., Plaintiffs,

v.

SEWON AMERICA, INC., et al., Defendants.

CIVIL CASE NO. 3:24-cv-00050-TCB-RGV

MAGISTRATE JUDGE'S NON-FINAL REPORT, RECOMMENDATION, AND ORDER

On March 15, 2024, plaintiffs Jimmy Ruiz Heredia (“Ruiz”) and Edgar Emmanuel Serrano Mondragon (“Serrano”),¹ both individually and on behalf of all others similarly situated and collectively referred to as “plaintiffs,” filed this civil action against defendants Sewon America, Inc. (“Sewon”) and Total Employee Solution Support, LLC (“TESS”), jointly referred to as “defendants,” [Doc. 1], and on July 21, 2024, plaintiffs filed a first amended complaint against defendants, alleging a federal claim pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., as well as state law claims for a violation of the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act, O.C.G.A. § 16-14-1 et seq., and breach of contract, see [Doc. 25]. Pending before the Court are motions to dismiss filed by defendants, [Doc. 26 (TESS's motion to dismiss); Doc. 27 (Sewon's partial motion to dismiss)], which plaintiffs oppose, [Doc. 28], and defendants have filed replies in support of their respective motions, [Docs. 29 & 30]. Plaintiffs also filed a motion for leave to file a surreply to defendants' replies in support of their motions to dismiss, [Doc. 31], which Sewon has opposed, [Doc. 32].² For the reasons that follow, plaintiffs' motion for leave to file a surreply, [Doc. 31], is GRANTED, and the Clerk is DIRECTED to enter the surreply, [Doc. 31-1], on the docket, and it is RECOMMENDED that TESS's motion to dismiss, [Doc. 26], and Sewon's partial motion to dismiss, [Doc. 27], be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action arises out of the employment of plaintiffs at an automotive parts manufacturing plant owned by Sewon and located in LaGrange, Georgia. [Doc. 25 ¶¶ 1-2, 15, 17, 53, 65-66, 79, 85, 108-10, 149, 160, 180, 185-87, 211, 214, 280]; see also [Doc. 25-6 at 40-41].³ In particular, plaintiffs allege that this “case involves fraud and wage violations against the U.S. Government and foreign workers who were exploited as part of an illegal scheme for cheap labor” by recruiting “professional engineers from Mexico” and promising them “professional-level engineering jobs that would qualify for the ‘Trade NAFTA’ or ‘TN’ visa program but were instead lured to the U.S. to perform non-qualifying manual labor under discriminatory and unsafe working conditions.” [Doc. 25 ¶¶ 1-2]. Specifically, plaintiffs, who are “citizens and nationals of Mexico, non-citizens of the United States, and Hispanic persons of Mexican ancestry,” allege that TESS, a labor recruitment company, posted job openings or otherwise recruited foreign national workers on behalf of Sewon for the purpose of job placement in Sewon's United States-based automotive parts manufacturing company. [Id. ¶¶ 12, 21, 49-55, 60-61, 65-67, 72, 79, 83, 109-10, 211, 220, 231-32, 235, 242, 246, 332]. Plaintiffs, who are skilled engineers and technicians, allege that they applied for, or were recruited for, engineering positions through TESS or Sewon, and that they were subsequently offered jobs by Sewon. [Id. ¶¶ 68, 72, 75, 79-82, 92-93, 110, 145, 147-49, 160-62, 187, 225, 352].

In January 2021, Ruiz saw a job opening posted by TESS for a mechanical engineer position at an automotive assembly plant in the southeastern United States, and in February 2021, he applied for the position. [Id. ¶¶ 72-73, 75-78, 242]. On February 12, 2021, TESS confirmed the receipt of Ruiz's resume for the Mechanical Engineer position, [id. ¶ 75 (citing [Doc. 25-1])], and Ruiz and TESS's recruiter exchanged correspondence about further documentation needed to continue with the application process, [id. ¶¶ 76-78].

On June 15, 2021, Ruiz received an email from TESS, which included a job offer letter dated June 14, 2021, from Sewon, offering him the position of Technical Engineer at Sewon's plant. [Id. ¶¶ 79-80]; see also [Doc. 25-3]. In particular, the letter addressed to Ruiz and signed on behalf of Sewon's Secretary and Chief Financial Officer, Junho Jung (“Jung”), provided, in relevant part:

On behalf of [Sewon] ․, it is my pleasure to extend an offer of employment to you to join the Sewon family in [the] Production Assembly Department as a Technical Engineer. Your responsibilities will be explained to you when you report to work on August 15, 2021.

The terms and conditions of this offer are as follows:

1. Your base salary will be $10.70 (Hourly) for 3 month waiting period. This amount is meant to compensate for all hours worked.

2. After 3 month probation, your hourly rate will be increased $0.50. And also the hourly rate will be increased $0.50 every 6 month[s] until [the] top maximum rate $16.80[.]

3. After 1 year from the completion of the 3 month probation, you will get the skill test from the Department and your hourly rate will be adjusted base[d] on the test result.

4. Your FLSA status will be Non-Exempt.

5. You will be hired as a full-time employee performing the job duties and responsibilities [in the] Production Assembly Department as a Technical Engineer.

6. This offer of employment is made with the understanding that you will submit the required documents listed on the following page on your first day of employment.

․

Please note that no individual has the authority to make any contrary agreement or representation. While [Sewon ] has every hope that the employment relationship will be mutually beneficial and rewarding, team members and the Company retain the right to terminate the employment relationship at will, at any time, with or without cause. Accordingly, this constitutes a final and fully binding, integrated agreement with respect to the at-will nature of the employment relationship.

[Doc. 25-3 at 4-5 (emphasis omitted)]; see also [Doc. 25 ¶¶ 80-81]. Ruiz signed the offer letter on June 16, 2021, and returned it to TESS's representative. [Doc. 25 ¶ 82].

In January 2021, plaintiff Serrano met with Sewon representatives at a job fair in Mexico at which time Sewon “was offering employment in the [United States] for skilled technicians working in the automotive industry.” [Id. ¶ 147]. Serrano applied for a maintenance engineer position at Sewon's LaGrange, Georgia plant, and on August 3, 2021, he received an email from Sewon, explaining the process, and it also included a “Relocation Repayment Agreement,” which provided for reimbursement up to $2,000 for relocation expenses, contingent on certain criteria. [Id. ¶¶ 148-53, 243 (citations omitted); Docs. 25-7 & 25-8 (emphasis and all caps omitted)]. Serrano signed the relocation agreement on August 4, 2021, and on August 9, 2021, a Sewon representative emailed Serrano about the next steps in the process. [Id. ¶¶ 154, 156 (citing [Doc. 25-14])]. Serrano had multiple communications with Sewon representatives, who assured Serrano that “he would be hired for an engineer position where he would help improve system processes and maintain specialized machinery at the Sewon facility.” [Id. ¶ 158].

On August 19, 2021, Jung sent Serrano a job offer letter from Sewon, offering him the position of Maintenance Engineer. [Id. ¶¶ 160, 162 (citation omitted); Doc. 25-10]. This job offer letter provided in relevant part as follows:

I am pleased to offer you an employment as a Maintenance Engineer at Sewon․ We are confident that your academic background and professional knowledge will be a valuable asset to the growth of this company's business in the US. Per our agreement, the terms and conditions of your employment shall be as the following:

• Job Title: Maintenance Engineer

• Employment Period: Up to three year[s] from Oct[ober] 1, 2021, but contingent upon the approval of TN Visa by the US Embassy

• Annual Wage: $36,000.00

[Doc. 25-10]; see also [Doc. 25 ¶ 161].

Plaintiffs allege that after they received their job offer letters and accepted employment, TESS assisted Ruiz, while Sewon assisted Serrano, in obtaining a TN visa to facilitate plaintiffs coming to the United States to work. [Doc. 25 ¶¶ 83, 163]. Specifically, plaintiffs assert that defendants helped them obtain TN visas, which were visas created by the United States government pursuant to the North American Free Trade Agreement (“NAFTA”) “to permit Mexican and Canadian professionals in certain occupations ․ to temporarily enter the United States for employment within their profession.” [Id. ¶¶ 36-37, 83-85, 94, 98-101, 104, 108, 163-64, 174, 177-78, 181, 185 (citations omitted)].⁴ During the TN visa application process, defendants provided plaintiffs with information, instructions, and support letters to help them obtain TN visas. [Id. ¶¶ 84-94, 98-104, 163-71, 173-74, 176-81 (citations omitted)]; see also [Docs. 25-4, 25-5, 25-6, & 25-11].

In particular, TESS provided Ruiz with a support letter on Sewon's letterhead dated June 21, 2021, that was addressed to the U.S. Embassy in Mexico City and provided in pertinent part:

Sewon wishes to temporarily employ [Ruiz] ․ in the NAFTA occupation of Professional Engineer․ He will hold the internal job title of Industrial Engineer as a full-time employee and receive an annual salary of $36,000.00 plus a standard employee benefits package.

․

The position offered is professional and specialized in nature and falls within the schedule of permitted TN occupations - Engineer-authorized by NAFTA.

As an Industrial Engineer, [Ruiz] ․ will utilize his academic background in Industrial Engineering and his professional background to work closely with fellow engineers, technicians and machinists to eliminate wastefulness in production processes and devise efficient systems that integrate workers, machines, materials, information, as well as auxiliary systems to support the overall architecture of various designs of Sewon.

His main duties will include the following:

• Provide engineering expertise in developing a range of engineering solutions to improve the manufacture of new and existing Sewon products;

• Analyze and determine best equipment setup and process flow for maximizing fabrication of parts within a high-volume manufacturing environment;

• Apply automated solutions to the transfer of materials, components, or finished goods;

• Improve current production processes to manufacture products, using applicable methods and procedures;

• Develop standardized work instructions so operators can perform work safely, with the proper quality and in the proper time;

• Apply mathematical analysis to determine validity and reliability of sampling and work statistics;

• Plan and schedule Manufacturing Orders to be completed in a timely manner by analyzing production capacities and scheduling all orders in the injection machines in a way that minimizes labor while decreasing the lead time to customers;

• Monitor, analyze, and prepare weekly production reports and reports them to the Operations Manager with suggested ideas to improve production efficiencies; and

• Support Production engineers and management staff by assisting in daily challenges that occur and also by managing inventory and completing projects as required to help control operating expenses.

The duties of the job position offered and the nature of Sewon services require that a candidate possess a bachelor's degree in Industrial Engineering or related engineering fields and additional work experience in manufacturing fields․

[Ruiz] ․ is well-qualified to fill the position of an Industrial Engineer․

Sewon views that [Ruiz] ․ is qualified for TN status as an Industrial Engineer for the following reasons:

• He is a Mexican citizen and is well qualified for the job position offered.

• The employment offered to [Ruiz] ․ [ ] is at a specialized level.

• He possesses the requisite professional qualifications to perform the duties at a professional level.

• The position offered is temporary, for up to three years in duration; and

• He intends to return to Mexico at the completion of the proposed assignment․

[Doc. 25-4 at 2-4 (emphasis omitted)]; see also [Doc. 25 ¶¶ 85-91].⁵

In addition, Sewon provided Serrano a support letter dated August 20, 2021, that was addressed to the U.S. Embassy in Mexico City and provided in pertinent part:

Sewon wishes to temporarily employ [ ] Serrano [ ] for up to 3 years in the NAFTA occupation of Professional Engineer․ He will hold the internal job title of Maintenance Engineer as a full-time employee and receive an annual wage of $36,000.00 plus a standard employee benefits package.

․

The position offered is professional and specialized in nature and falls within the schedule of the permitted TN occupations — Engineer—authorized by NAFTA. This role requires the services of an individual whose academic background in Engineering and professional experiences will enable them to plan and optimize equipment and control systems to identify and implement improvement activities that result in MRO cost reduction and increased equipment uptime in a high speed/high volume manufacturing facility of Sewon.

More specifically, the Maintenance Engineer's main job duties will include the following:

• Serve as an engineering subject matter expert on optimization, performance, preventative maintenance, and availability of the production equipment;

• Identify and initiate continuous improvement activities to ensure quality, volume and availability targets are met;

• Lead equipment failure investigations, determine root cause and implement corrective and preventative actions;

• Develop equipment performance requirements for the facility and implement management system to ensure achievement by coordinating repairs and refurbishments within approved budgetary guidelines;

• Analyze equipment performance and replacement and make recommendations for improvement in the overall maintenance areas based on failure data, craft feedback, and design modifications;

• Continuously evaluate workplace for safety concerns and ensures behavioral safety initiatives are performed to goal levels;

• Plan and execute preventive maintenance schedules of various equipment to increase machine up time and equipment reliability; and

• Prepare reports to notify operations and maintenance of equipment health and recommend remaining time to mandatory shutdown or failure of equipment.

The duties of the position offered and the nature of Sewon's services require that a suitable candidate possess a bachelor's degree in Engineering or related fields and additional work experience in manufacturing fields․

[ ] Serrano [ ] is well-qualified to fill the position of a Maintenance Engineer․

Sewon views that [ ] Serrano [ ] is qualified for TN status as a Maintenance Engineer for the following reasons:

• He is a Mexican citizen and is well qualified for the job position offered;

• The employment offered to him is at a specialized level;

• He possesses the requisite professional qualifications to perform the duties at a professional level;

• The position offered is temporary, for up to 3 years in duration; and

• He intends to return to Mexico at the completion of the proposed assignment․

[Doc. 25-11 at 2-4 (emphasis omitted); Doc. 25 ¶¶ 163-71, 173 (citation omitted)].⁶

After plaintiffs traveled to the U.S. Consulate in Mexico City for their interviews to obtain TN visas and secured their TN visas,⁷ they moved to the United States to begin working at the Sewon plant.⁸ [Doc. 25 ¶¶ 105, 108-10, 182, 185-87]. Plaintiffs allege that once they began work at the Sewon plant, they “immediately learned that the job[s] [they] had been promised did not exist (or at least did not exist for [them]),” because “[r]ather than perform technical services as promised by TESS and Sewon and as required for a TN visa,” they were “required to perform manual labor” by working as “picker[s] on an assembly line,” which “required no technical skill” and “involved the repetitive selection of automotive parts on countless automobiles during each shift.” [Id. ¶¶ 112-15, 142, 189-91 (internal marks omitted)]; see also [id. ¶¶ 141, 202, 204]. Ruiz alleges that despite already working 12-hour shifts, he was “required to work overtime” often “resulting in 17-hour shifts,” while Serrano alleges that he was required to work 12-hour shifts and overtime and to alternate “between working five-day workweeks and six-day workweeks[.]” [Id. ¶¶ 126-27, 199-200]. Plaintiffs also allege that they earned less per hour than “American employees” of Sewon, and that they were paid less than the amount listed in their job offer and support letters. [Id. ¶¶ 117-20, 125, 138, 143, 192-97]. Plaintiffs allege that the “conditions under which [they were] required to perform the manual labor ․ were hazardous, including extreme heat and extreme cold,” and Ruiz further alleges that after he complained that “he was being treated differently than other workers” on August 5, 2023, he was terminated that same day “for insubordination[.]” [Id. ¶¶ 133-37, 203].

Based on these factual allegations, plaintiffs filed a first amended class action complaint on July 21, 2024, alleging a federal claim, pursuant to the FLSA, as well as state law claims for violations of the Georgia RICO Act and breach of contract. See [Doc. 25]. With respect to the Georgia RICO claim asserted against both defendants in Count I of the first amended class action complaint, [id. ¶¶ 313-38], plaintiffs allege that defendants “were an enterprise ․ within the meaning of the Georgia RICO in that they were associated in fact”; that this enterprise “existed for the common purpose of securing cheap manual labor to work at the Sewon plant and to profit from such labor”; that the association “began as early as January 2021 and was used to defraud [p]laintiffs, the U.S. government, and many other foreign workers recruited from Mexico to work for Sewon”; that defendants “associated with each other for the common purpose of recruiting Mexican engineers and technicians for and employing Mexican engineers and technicians on Sewon's production line”; that they “agreed to recruit and employ foreign workers to work as laborers on Sewon's productions line”; that “TESS agreed with Sewon to publish fraudulent job postings for open engineer positions or other positions with education and skill requirements necessary to make foreign workers qualified for TN visas employment at the Sewon plant”; that “Sewon provide TESS detailed information relating operations at the Sewon plant to use during recruitment and to include in the TN visa [s]upport [l]etters, including about the work Sewon needed industrial, maintenance, and technical engineers to perform at its facility”; and that the enterprise, and each defendant individually, engaged in racketeering activities, including:

false statements and writings in violation of O.C.G.A. § 16-[1]0-[2]0; mail fraud in violation of 18 U.S.C. § 1341; wire fraud in violation of 18 U.S.C. § 1343; labor contracting fraud in violation of 18 U.S.C. § 1351; and misuse of visas in violation of 18 U.S.C. § 1546, all of which constitute racketeering activity under O.C.G.A. § 16-14-3(5)(A)-(B).

[Id. ¶¶ 206, 208-13, 215]; see also [id. ¶¶ 255-69, 275, 318-19, 321-22, 324-25, 327, 332].

Plaintiffs allege that defendants “agreed to make false representations to [p]laintiffs ․ that the jobs available at the Sewon plant required the education and skill that would make them eligible for TN visas and entice them to apply, while knowing that these jobs did not exist and that [p]laintiffs and others would be working manual labor production assembly line jobs”; that TESS, “acting as a recruiter for Sewon, made these misrepresentations and committed overt acts of collecting information, causing the mail/wires to be used to transmit and in furtherance of the false and fraudulent statements to [p]laintiffs, the U.S. government, and others, facilitating consular interviews for the [p]laintiffs, preparing [p]laintiffs for their consular interviews ․, and providing other information to Sewon”; and that “TESS and Sewon decided which candidates to hire, and then Sewon directed TESS to provide those candidates with job offers for jobs that did not exist.” [Id. ¶¶ 218, 220, 237]. Plaintiffs assert that they “suffered actual damages that were directly and proximately caused by the fraudulent job posting for a position with Sewon, the application and related information provided to them, the offer letters provided to them, and the [s]upport [l]etters provided to them and the U.S. Consulate,” including travel costs to and from the U.S. Consulate for the TN visa interview, visa processing fees, expenses for travel to the United States to work for Sewon and return travel to Mexico, costs to purchase furniture and household goods upon arrival, and lost wages. [Id. ¶¶ 272, 333-34, 337]. Plaintiffs also allege as part of a RICO conspiracy that defendants “conspired with each other to engage in a fraudulent scheme in violation of the Georgia RICO, O.C.G.A. § 16-14-4(c),” and that “[e]ach [d]efendant committed at least one overt act to effect the object of the conspiracy.” [Id. ¶¶ 274-79, 323]. Plaintiffs further allege that each of them have standing to pursue their claim under Georgia RICO. [Id. ¶¶ 315-16].

In Count II, plaintiffs assert a claim for violations of the FLSA against Sewon, [id. ¶¶ 339-48], and in Count III of the first amended class action complaint, plaintiffs assert a state law claim for breach of contract against Sewon, alleging that the “parties entered into a written contract”; that in the “written offer letters, together with terms provided in the [s]upport [l]etters, Sewon made written offers of employment to [p]laintiffs ․ which contained material terms of their employment ․”; that plaintiffs “accepted the material terms of employment”; that defendants “did not provide employment to [p]laintiffs ․ as offered, but rather, provided manual labor jobs on its production line which were not eligible for TN visas, for wages that were lower than the wage promised in the support letters”; and that defendants “thus breached their contracts with [p]laintiffs,” [id. ¶¶ 349-57].⁹

Defendants have filed motions to dismiss, [Docs. 26 & 27],¹⁰ which plaintiffs oppose, [Doc. 28],¹¹ and defendants filed separate replies in support of their respective motions, [Docs. 29 & 30]. Plaintiff also filed a surreply to defendants' replies, [Doc. 31-1], and the pending motions to dismiss, [Docs. 26 & 27], are now ripe for ruling.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of an action when the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Ghee v. Comcast Cable Commc'ns, LLC, No. 22-12867, 2023 WL 3813503, at *2 (11th Cir. June 5, 2023) (per curiam) (citation omitted). In considering motions to dismiss, the Court must accept plaintiffs' allegations as true and construe the complaint in their favor. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993); Tapsoba v. Khiani Alpharetta, LLC, Civil Action No. 1:13–CV–1519–RWS, 2013 WL 4855255, at *1 (N.D. Ga. Sept. 11, 2013).¹² “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [ plaintiffs'] obligation to provide the grounds of [their] entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (last alteration in original) (citations and internal marks omitted).

“Factual allegations must be enough to raise a right to relief above the speculative level,” id. (footnote and citation omitted), as the complaint must contain “enough facts to state a claim to relief that is plausible on its face,” id. at 570. “A claim has facial plausibility when the plaintiff[s] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556); see also Doe v. Samford Univ., 29 F.4th 675, 685 (11th Cir. 2022) (citation omitted). The Supreme Court in Iqbal held:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice․ Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for [ ] plaintiff[s] armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss․ [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader[s are] entitled to relief.”

556 U.S. at 678-79 (second to last alteration in original) (citations omitted); see also Evans v. Ga. Dep't of Behav. Health & Developmental Disabilities, CV 415-103, 2018 WL 4610630, at *3 (S.D. Ga. Sept. 25, 2018) (alterations in original) (citation and internal marks omitted) (“Although there is no probability requirement at the pleading stage, something beyond ․ mere possibility ․ must be alleged.”). That is, the “alleged facts, having been stripped of all legal conclusions, must make a claim for relief not merely possible, but plausible.” Turner v. Williams, 65 F.4th 564, 577 (11th Cir. 2023) (emphasis and citation omitted).

“While Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable,’ ” Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556), “[t]o state a plausible claim for relief, [ ] plaintiff[s] must go beyond merely pleading the ‘sheer possibility’ of unlawful activity by [ ] defendant[s] and so must offer ‘factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged,’ ” Stabb v. GMAC Mortg., LLC, 579 F. App'x 706, 708 (11th Cir. 2014) (per curiam) (unpublished) (citation omitted). The Court “ask[s], therefore, whether a claim is substantively plausible.” Young v. Grand Canyon Univ., Inc., 57 F.4th 861, 867 (11th Cir. 2023) (alterations, citation, and internal marks omitted). “Regardless of the alleged facts, however, a court may dismiss a complaint on a dispositive issue of law.” Moore v. McCalla Raymer, LLC, 916 F. Supp. 2d 1332, 1342 (N.D. Ga. 2013) (citations and internal marks omitted), adopted at 1336; see also Bakos v. UNUM Life Ins. Co. of Am., No. 22-11131, 2022 WL 3696648, at *2 (11th Cir. Aug. 25, 2022) (per curiam) (citing Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).

III. DISCUSSION

Plaintiffs' first amended class action complaint arises out of their recruitment and subsequent employment at the Sewon plant in LaGrange, Georgia. See [Doc. 25]. In particular, plaintiffs allege that Sewon associated with TESS, “a labor recruitment and staffing agency, for the common purpose of recruiting [p]laintiffs and other foreign professionals to secure nonimmigrant ․ TN visas [for them to] work for Sewon as manual laborers at the Sewon facility,” despite the fact that defendants “knew that TN visas would not and could not be granted for the manual labor positions that Sewon wanted filled,” since “TN visas are only available to professional-level foreign workers for professional level jobs that require specialized education and experience.” [Id. ¶¶ 3-4]. Plaintiffs assert that “[d]efendants [ ] hatched a scheme to recruit highly skilled Mexican engineers and technicians for non-existent professional-level positions that would qualify for the TN visa program,” and that the “bait and switch [was] accomplished by fraud against the foreign workers and the U.S. Government” because after “the Mexican engineers and technicians [were hired] for non-existent engineer and technician jobs” and assisted “with securing [ ] TN visas by submitting fraudulent documents to the U.S. Government,” the foreign workers' jobs were switched to “manual labor job[s] with lower-than-promised pay and unsafe working conditions” after they “arrived to the United States.” [Id. ¶¶ 5-6]. Plaintiffs assert that they “and other Mexican engineers and technicians were victims of this scheme,” having “relied upon [d]efendants' misrepresentations” and “spent money for fraudulent visas, to travel to the U.S. Consulate for interviews, and move from Mexico to the U.S. for jobs they reasonably believed qualified for [ ] TN visa[s] and would utilize their specialized education, experience, and skills.” [Id. ¶ 7].

Plaintiffs allege claims under the Georgia RICO Act against both defendants, as well as claims under the FLSA and for breach of contract against Sewon. See [Doc. 25]. TESS has moved to dismiss plaintiffs' Georgia RICO claim, the sole claim asserted against it, see [Doc. 26], while Sewon moves to dismiss plaintiffs' Georgia RICO and breach of contract claims asserted against it, see [Doc. 27], with defendants arguing that plaintiffs lack standing to bring their Georgia RICO claim, that plaintiffs have failed to state a claim upon which relief can be granted as to their Georgia RICO and breach of contract claims, and that plaintiffs' allegations fail to satisfy the pleading requirements under Rule 9(b) of the Federal Rules of Civil Procedure, see [Doc. 26-1 at 4-22; Doc. 27 at 5-28]. Plaintiffs oppose the motions to dismiss, [Doc. 28], which have now been fully briefed, see [Docs. 29, 30, & 31-1], and for the reasons that follow, the motions are due to be denied.

A. Georgia RICO Claims

Plaintiffs bring claims against defendants “under all subsections of the Georgia RICO, including O.C.G.A. § 16-14-4(a)-(c).” [Doc. 25 ¶¶ 313-38]. Specifically, plaintiffs allege the existence of an associated in fact enterprise consisting of Sewon and TESS, with the enterprise existing “for the common purpose of securing cheap manual labor to work at the Sewon plant and to profit from such labor.” [Id. ¶¶ 206, 208, 318-19]. In support of their Georgia RICO Act claims, plaintiffs allege predicate acts of mail fraud, in violation of 18 U.S.C. § 1341; wire fraud, in violation of 18 U.S.C. § 1343; fraud in foreign labor contracting, in violation of 18 U.S.C. § 1351; visa fraud, in violation of 18 U.S.C. § 1546; and false statements and writings, in violation of O.C.G.A. § 16-10-20. [Id. ¶¶ 215, 255-65, 275, 278, 322, 324-25]. Plaintiffs assert that defendants “acquired or maintained an interest in personal property, including money, through the [ ] pattern of racketeering activity,” in violation of O.C.G.A. § 16-14-4(a), and that they “conducted or participated in, directly or indirectly, an enterprise with which it was associated through this pattern of racketeering activity,” in violation of O.C.G.A. § 16-4-4(b). [Id. ¶¶ 266-69]; see also [id. ¶¶ 317, 321]. Plaintiffs also allege that defendants “conspired or endeavored for one or both of them to acquire an interest in money through a pattern of racketeering activity,” and that “one or more of [them] committed one or more overt acts to effect this objective, in violation of O.C.G.A. § 16-14-4(c).” [Id. ¶ 323].

The requirements for a Georgia RICO claim are set forth in O.C.G.A. § 16-14-4, with “[s]ection (a) of the statute” providing that “it is unlawful for any person, through a pattern of racketeering activity to acquire any interest in or control of any enterprise, real property, or personal property of any nature, including money”; section (b) providing “that it is unlawful for any person employed by or associated with any enterprise to conduct or participate in such enterprise through a pattern of racketeering activity”; and section (c) making “it unlawful to conspire or endeavor to violate any of the provisions of subsections (a) or (b) of the statute.” LifeBrite Lab'ys, LLC v. Blue Cross & Blue Shield of Fla., Inc., CIVIL ACTION NO. 1:23-cv-03748-JPB, 2024 WL 3034336, at *11 (N.D. Ga. June 17, 2024) (alterations and internal marks omitted) (quoting O.C.G.A. § 16-14-4(a)-(c)).¹³ “To establish a violation under subsection (a), unlike a [f]ederal RICO claim or a Georgia RICO claim under subsection (b), all [p]laintiffs have to show is proof that the defendant[s] committed predicate offenses ․ at least twice.” Turk v. Morris, Manning & Martin, LLP, 593 F. Supp. 3d 1258, 1299 (N.D. Ga. 2022) (last alteration in original) (footnote, citations, and internal marks omitted).¹⁴ “To establish a violation of subsection (b), however, [p]laintiffs would also have to show that [d]efendants were employed by or associated with an enterprise.” Id. (citation and internal marks omitted); see also AmNet Esop Corp. v. CrossCountry Mortg., Inc., Civil Action No. 2:23-cv-10-RWS, 2023 WL 9181488, at *18 (N.D. Ga. Dec. 18, 2023) (emphasis and citations omitted) (explaining that “subsection (b) of the Georgia civil RICO statute, which prohibits conducting or participating in an enterprise, corresponds with the federal civil RICO claim,” and “does require facts alleging proof of an enterprise”). Thus, “to state a civil claim based upon a violation of the Georgia RICO Act, a plaintiff must plausibly allege that (1) [ ] defendant[s] violated the Georgia RICO Act; (2) as a result of this conduct, [ ] plaintiff[s have] suffered an injury; and (3) [ ] defendant[s'] violation of the Georgia RICO Act was the proximate cause of plaintiff[s'] injur[ies].” J.C. v. I Shri Khodiyar, LLC, 624 F. Supp. 3d 1307, 1321 (N.D. Ga. 2022) (citation omitted); see also I.R. v. I Shri Khodiyar, LLC, 723 F. Supp. 3d 1327, 1342 (N.D. Ga. 2024) (citation and internal marks omitted) (“To establish a civil RICO claim under Georgia law, [ ] plaintiff[s] must show that [ ] defendant[s] violated or conspired to violate Georgia's RICO Act and that the RICO violation proximately caused injury to [ ] plaintiff[s].”). “There must be a direct nexus between at least one of the predicate acts listed under the RICO Act and the injury [ plaintiffs] purportedly sustained.” Functional Prod. Trading, S.A. v. JITC, LLC, No. 1:12–cv–0355–WSD, 2014 WL 3749213, at *14 (N.D. Ga. July 29, 2014) (citation and internal marks omitted).¹⁵

Defendants argue that plaintiffs' Georgia RICO Act claims must be dismissed because plaintiffs: (1) lack standing to bring this claim due to their failure to sufficiently allege any direct link between the alleged racketeering activities and the purported harm they suffered; (2) failed to plead sufficient facts that defendants participated in any activities of an enterprise through a pattern of racketeering activity or to establish two or more underlying predicate acts; and (3) failed to allege sufficient facts from which it could be inferred that a conspiracy existed. [Doc. 26-1 at 6-22; Doc. 27-1 at 7-21]. “In analyzing [p]laintiffs' Georgia RICO claims, the Court will begin with the requirement that [p]laintiffs establish a pattern of racketeering activity as to each [d]efendant,” and then “the Court will consider whether that same conduct proximately caused [p]laintiffs' alleged damages.” Turk, 593 F. Supp. 3d at 1300.

1. Pattern of Racketeering Activity

Plaintiffs allege that defendants, individually and through the RICO enterprise, committed the following predicate acts: (1) mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343; (2) fraud in foreign labor contracting, in violation of 18 U.S.C. § 1351; (3) visa fraud, in violation of 18 U.S.C. § 1546; and (4) false statements and writings, in violation of O.C.G.A. § 16-10-20. [Doc. 25 ¶ 324]. Defendants contend that plaintiffs cannot establish that they engaged in a pattern of racketeering activity because they have failed to adequately plead two or more predicate acts. See [Doc. 26-1 at 14-17; Doc. 27-1 at 14-18]. Specifically, defendants argue that plaintiffs cannot establish the predicate acts of mail or wire fraud because “they fail to allege any misrepresentations made to them” and “they fail to allege that any misrepresentations rise to the level of a scheme or artifice to defraud another of money or property.” [Doc. 27-1 at 15-16 (internal marks omitted)]; see also [Doc. 26-1 at 14-16]. In this respect, TESS maintains that plaintiffs have failed “to show [ ] the role [it] played in informing the annual salary of $36,000.00 and [the] actual[ ] compensation [p]laintiffs received from Sewon,” [Doc. 26-1 at 15], and both defendants assert that Sewon “retained authority to change, alter or terminate [p]laintiffs' employment and thus, [p]laintiffs cannot establish that an offer of an engineer position was fraudulent,” [id. at 15-16; Doc. 27-1 at 16]. Defendants also assert that plaintiffs cannot establish the predicate act of fraud in foreign labor contracting or visa fraud because “they have not pled adequate facts showing Sewon made materially false or fraudulent misrepresentations to [p]laintiffs and/or ‘caused’ TESS to make materially false or fraudulent misrepresentations.” [Doc. 26-1 at 16-17; Doc. 27-1 at 16-17]. Defendants again maintain that “Sewon retained authority to change the terms and conditions of [p]laintiffs' employment at all times so a change in job duties is insufficient to establish fraud,” and that plaintiffs' “conclusory allegations that [either TESS or Sewon] made misrepresentations regarding the nature of the job duties performed without any supporting allegations is insufficient to meet the heightened Rule 9(b) standard.” [Doc. 26-1 at 17; Doc. 27-1 at 17].

Plaintiffs respond that they have “adequately allege[d] that each [defendant] individually committed at least two predicate acts of racketeering activity.” [Doc. 28 at 13]. With respect to Sewon, plaintiffs point out that they alleged in their first amended class action complaint that Sewon provided false information about a non-existent engineer job to TESS, which TESS posted on the internet and to which Ruiz applied; provided TESS with a fraudulent offer letter for a non-existent engineer position, which TESS provided to Ruiz; provided TESS, Ruiz, and the U.S. Government a TN visa support letter, promising Ruiz an engineer job that did not exist and which involved performing various highly specialized engineering tasks at an annual salary of $36,000; sent Ruiz a second offer letter for submission to the U.S. Government which contained the same false and fraudulent statements as the TN visa support letter; submitted all of the false statements and documents to Ruiz and the U.S. Government to cause Ruiz to accept a job in the United States and the government to issue a TN visa; sent Sewon representatives to personally recruit Mexican engineers in Mexico, including Serrano, which caused Serrano to apply for a non-existent engineering job that was represented as a TN visa qualifying job; sent an email to Serrano and 52 others to explain that they needed certain information and documents to obtain a TN visa; sent an email to Serrano directing him to provide information for the TN visa application for an engineering job Sewon knew did not exist and to make payment of a visa processing fee; sent Serrano an offer letter that offered a non-existent engineer position; prepared and submitted a TN visa support letter to Serrano that fraudulently promised a non-existent engineering position at an annual salary of $36,000; emailed Serrano an instructional interview guide on how to answer questions during the consulate interview for the TN visa; coached Serrano personally in meetings and over the internet on how to represent his background in order to obtain a TN visa; submitted all of the false statements and documentation to Serrano and the U.S. Government to cause Serrano to accept a job in the United States and the government to issue him a TN visa for a non-existent engineer job; and engaged in the same acts with approximately 190 individuals. [Id. at 13-15 (citing [Doc. 25 ¶¶ 72-73, 79-81, 85-90, 92-95, 108-15, 131-34, 142, 148, 150, 156, 160-78, 181, 186-98, 202-04, 213, 243-44, 282; Docs. 25-3, 25-4, 25-5, 25-7, 25-10, 25-11, & 25-15])].

With respect to TESS, plaintiffs point out that they alleged that TESS committed at least two predicate acts, including that TESS used the internet to post fraudulent announcements for jobs qualifying for the TN visa that did not exist, including the mechanical engineering position Ruiz applied for; sent emails to applicants who sought TN visa jobs that misled them into believing such jobs existed at Sewon, such as the email sent to Ruiz; sent written offers of employment for non-existent jobs that qualified for a TN visa to applicants for such jobs; communicated with applicants for non-existent TN visa jobs via the internet; sent TN visa support letters to applicants for use in their TN visa applications, such as the one sent to Ruiz; sent Ruiz a second fraudulent offer letter to be used in securing a TN visa; sent applicants information about how to prepare for the TN visa interview to maximize the chances of securing a TN visa for a job TESS knew did not exist; and submitted all of the false statements and documentation to Ruiz and the U.S. Government to cause Ruiz to accept a job in the United States and the government to issue him a TN visa for TN visa qualified work that did not exist. [Id. at 16-17 (citing [Doc. 25 ¶¶ 25, 72, 75, 79, 85, 94, 98-104, 108-15, 131-34; Docs. 25-1, 25-3, & 25-5])]. Based on these allegations, plaintiffs maintain that they have “adequately allege[d] the particulars of predicate acts, namely violations of O.C.G.A. § 16-[1]0-[2]0 (false statements and writings), 8 U.S.C. § 1341 (mail fraud), 8 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1351 (labor contracting fraud); 18 U.S.C. § 1546 (misuse of visas), all of which are predicate acts under Georgia RICO,” and that “these facts certainly amount to plausible allegations that the defendants committed predicate offenses at least twice.” [Id. at 17 (alterations, footnote, citations, and internal marks omitted)]. For the reasons that follow, the Court agrees with plaintiffs.

“A ‘racketeering activity,’ also known as a ‘predicate act,’ is the commission, attempted commission, solicitation, coercion, or intimidation of another to commit any crime which is chargeable by indictment under one of forty-one enumerated categories of offenses.” J.C., 624 F. Supp. 3d at 1320 (citation and internal marks omitted).¹⁶ “A ‘pattern of racketeering activity’ means engaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics.” Id. (alteration, citations, and internal marks omitted). “In other words, to state a claim under the Georgia RICO Act, [ ] plaintiff[s] must allege facts showing that [ ] defendant[s] committed predicate offenses at least twice,” and to “constitute a ‘pattern,’ [ ] defendant[s'] acts must be linked, but distinguishable enough to not be merely two sides of the same coin.” Id. (alteration, citations, and internal marks omitted).

As previously discussed, plaintiffs allege defendants committed five predicate acts: mail fraud, in violation of 18 U.S.C. § 1341; wire fraud, in violation of 18 U.S.C. § 1343; fraud in foreign labor contracting, in violation of 18 U.S.C. § 1351; visa fraud, in violation of 18 U.S.C. § 1546; and false statements and writings, in violation of O.C.G.A. § 16-10-20. [Doc. 25 ¶ 324].¹⁷ Where a RICO claim alleges fraud as the predicate acts, as is the case here, plaintiffs allegations of fraud “must comply with the heightened pleading standard set forth in Fed. R. Civ. P. 9(b),” which requires plaintiffs to allege: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the [p]laintiffs; and (4) what the defendants gained by the alleged fraud.” Lechter v. Aprio, LLP, 565 F. Supp. 3d 1279, 1318 (N.D. Ga. 2021) (citations and internal marks omitted); see also Magnifico v. Villanueva, 783 F. Supp. 2d 1217, 1227 (S.D. Fla. 2011) (citation omitted) (“RICO claims based solely on fraud-related predicate acts such as mail, wire, or immigration document fraud, must be plead with particularity.”). That is, plaintiffs “must set forth the who, what, when, where, and how circumstances of the fraud.” Lechter, 565 F. Supp. 3d at 1318 (alteration, citation, and internal marks omitted). However, plaintiffs “need only plead the existence of the fraudulent scheme in adherence with Rule 9(b), not each [d]efendant's specific role.” Aquino, 2024 WL 2764047, at *15 (emphasis omitted).

Plaintiffs have plausibly alleged that defendants committed the predicate acts alleged in compliance with Federal Rule of Civil Procedure 9(b). Indeed, plaintiffs “allege the specific misrepresentations [TESS, while acting as a recruiter for Sewon, and Sewon] ․ made, when they made them, why [p]laintiffs relied on them, and what [both of] the [d]efendants gained by the misrepresentations,” and plaintiffs “even include the documents containing these misrepresentations as attachments to the [first amended class action] complaint.” Aquino, 2024 WL 2764047, at *16 (citation omitted). Plaintiffs “also allege that [Sewon] ․ provided detailed information relating to operations at the [Sewon] plant which [TESS] ․ used to recruit [p]laintiffs and included in the TN visa support letters” and that defendants “knew the TN visa requirements and reviewed the documents with full knowledge that the foreign workers were not performing jobs that qualified for the TN visa.” Id. (alteration, citations, and internal marks omitted); see also [Doc. 25 ¶¶ 213, 217]. Moreover, plaintiffs' allegations that Sewon “directed [TESS] ․ to post the job announcements, approved the support letters that [TESS] ․ provided, and [ ] supervised [p]laintiffs ․ certainly make it plausible that [defendants] ․ could reasonably foresee the scheme would require use of the mails and making representations to the government and to the employees.” Aquino, 2024 WL 2764047, at *16 (citation and internal marks omitted); see also [Doc. 25 ¶¶ 230-41, 243, 246, 248-49, 255-65, 332].

In particular, with regard to the predicate acts of mail and wire fraud, plaintiffs allege that TESS's owner's practice was to communicate directly with TESS's customers, such as Sewon, about their staffing needs in order to provide the laborers they requested for their facilities and that as recently as December 2023, TESS received communication from a client's representative that it needed more general laborers for its facility and not TN visa workers, but that TESS responded by directing TESS employees to procure TN visa workers from Mexico to fill this request, [Doc. 25 ¶¶ 61-62]; that since 2021, TESS has sent job offers or vacancy announcements to candidates for jobs at various companies, including Sewon, which were laborer jobs that did not qualify for the TN visa but still listed professional degree or TN visa as a requirement for those positions, [id. ¶ 64]; that Sewon directed TESS to post job announcements for positions of employment that qualified for a TN visa and that TESS agreed to publish the job postings, [id. ¶¶ 212, 231, 235, 255, 275, 278, 332]; that defendants decided which candidates to hire, [id. ¶ 237]; plaintiffs received from Sewon or TESS via mail or email letters signed by Sewon's representatives offering engineering positions defendants knew did not exist, [id. ¶¶ 27, 79-81, 92, 94, 160-62, 237, 257, 275, 278, 332]; plaintiffs signed the offer letters accepting the terms and conditions offered, [id. ¶ 82]; defendants prepared letters in support of plaintiffs' TN visa applications which were approved and signed by Sewon representatives and addressed to the U.S. Consulate in Mexico, [id. ¶¶ 27, 83, 86, 163, 165, 227, 238, 259, 275, 278, 332]; defendants provided the support letters to plaintiffs and the U.S. Consulate, [id. ¶¶ 84-85, 164, 227, 229, 238-41, 259, 332]; Sewon provided information to TESS about its operations to use during recruitment and to include in the fraudulent support letters, [id. ¶ 213]; defendants knew the representations in the offer and support letters were false, [id. ¶¶ 96, 229, 332]; defendants caused to be transmitted to plaintiffs and others by mail and email the offer letters and support letters, [id. ¶¶ 85, 257, 259, 332]; the job titles in the offer and support letters were material misrepresentations on which plaintiffs relied, [id. ¶¶ 221, 226, 258]; the United States government relied on the material misrepresentations made in the support letters, [id. ¶¶ 87-91, 108, 166-69, 171, 185, 260]; the job announcements posted by defendants contained material misrepresentations on which plaintiffs relied when applying, [id. ¶ 256]; and plaintiffs relied on the jobs promised in the offer and support letters in making their decision to move to the United States and work at the Sewon plant, [id. ¶¶ 109, 186, 352]. “These allegations—accepted as true at this stage—adequately establish [wire fraud and mail fraud] as [ ] actionable predicate act[s].”¹⁸ Virtus Pharms., LLC v. Woodfield Distrib., LLC, Case No: 8:21-cv-2427-WFJ-SPF, 2022 WL 2829634, at *8 (M.D. Fla. July 20, 2022) (citation omitted); see also Castellanos v. Worldwide Distrib. Sys. USA, LLC, Case No. 2:14-cv-12609, 2016 WL 11678220, at *3 (E.D. Mich. June 20, 2016) (stating that while it was “not clear from the facts whether [defendant] sent its offer letters to the proposed class via the mail or internet[,] [or] whether it used the mails or internet to send its TN visa letters to the American embassy in Mexico,” if plaintiff's “allegations on the topic [were] true, then fraud would be established under either 18 U.S.C. § 1341 or § 1343, and an underlying violation would exist for class purposes”); Jordan v. Scott Fetzer Co., No. 4:07-CV-80 (CDL), 2007 WL 4287719, at *8 (M.D. Ga. Dec. 4, 2007) (citations omitted) (stating plaintiffs' “factual allegations plainly support[ed] the contention that some of [d]efendant's misrepresentations were made in communications sent through the mail and wires”). Based on the same allegations, plaintiffs also have plausibly alleged that defendants committed both visa fraud and fraud in foreign labor contracting. See Carmen v. Health Carousel, LLC, Case No. 1:20-cv-313, 2023 WL 5104066, at *10 (S.D. Ohio Aug. 9, 2023).¹⁹ Further, each of the offer letters and support letters provided to plaintiffs are dated and attached to the first amended complaint, see [Docs. 25-3, 25-4, 25-5, 25-6, 25-7, 25-8, 25-9, 25-10, 25-11, 25-14, & 25-15], which clearly provide defendants with the “ ‘time, place, and manner’ of the alleged fraud,” Jordan, 2007 WL 4287719, at *9. Thus, “[a]t the most basic level, [while p]laintiffs must allege facts with respect to each defendant's participation in the fraud,” plaintiffs “have done that” as they “have alleged, with the required specificity, that [d]efendants committed multiple acts of mail [and wire] fraud for each employee recruited through the scheme as well as at least one act of visa fraud and fraud in foreign labor contracting for each employee recruited.” Aquino, 2024 WL 2764047, at *16 (citation and internal marks omitted).²⁰ Thus, defendants' arguments for dismissal on this basis are without merit.

2. Causation and Injury

Defendants also argue that plaintiffs cannot establish RICO's standing requirements. See [Doc. 26-1 at 6-13; Doc. 27-1 at 7-13]; see also [Doc. 29 at 5-11; Doc. 30 at 3-9]. The last two elements, causation and injury, are “often referred to as RICO's [ ] standing requirement[.]” Keeton v. Gynecare Worldwide, CASE NO. 15-20442-CIV-KING/MCALILEY, 2016 WL 2753866, at *2 (S.D. Fla. Jan. 29, 2016) (citation omitted), adopted sub. nom. Keeton v. Johnson & Johnson, CASE NO. 15-20442-CIV-KING, 2016 WL 2753667, at *1 (S.D. Fla. Mar. 31, 2016); see also Byron v. Avant Healthcare Pros., LLC, Case No: 6:23-cv-1645-JSS-LHP, 2024 WL 2304490, at *16 (M.D. Fla. Apr. 10, 2024) (citations omitted) (explaining that plaintiffs' “must also demonstrate [ ] standing under RICO, which requires [ ] plaintiff[s] to establish [ ] injury and causation,” and that Rule 12(b)(6) was the appropriate means to review RICO standing), adopted by 2024 WL 3738488, at *10 (M.D. Fla. Aug. 9, 2024); Functional Prod. Trading, S.A., 2014 WL 3749213, at *4 (alteration, citation, and internal marks omitted) (explaining that to “have standing to bring a civil claim under Georgia's RICO Act, a plaintiff must not only show a pattern of racketeering activity, but also a direct nexus between at least one of the predicate acts listed under the RICO Act and the injury the plaintiff purportedly sustained”); Moe Dreams, LLC v. Sprock, Civil Action No. 1:08-CV-0196-RWS, 2008 WL 4787493, at *2-3 (N.D. Ga. Oct. 27, 2008) (finding plaintiffs sufficiently alleged an injury and causal link such that they had standing to bring a Georgia RICO claim). “To satisfy the proximate cause element of a Georgia RICO claim, [ ] plaintiff[s] must show that [their] injur[ies] flowed directly from a predicate act.” J.C., 624 F. Supp. 3d at 1322 (citation and internal marks omitted). And, to “survive a motion to dismiss, [ ] plaintiff[s] asserting a Georgia RICO claim must allege more than that an act of racketeering occurred and that [they were] injured, and instead must show that [their] injur[ies were] the direct result of a predicate act targeted toward[s them], such that [they were] the intended victim[s].” Id. (citation and internal marks omitted).²¹

Plaintiffs allege the following injuries as a result of defendants' alleged scheme:

a. Travel costs to and from the U.S. consulate for the mandated TN visa interview;

b. U.S. [g]overnment visa processing fees of $160 per visa;

c. Unreimbursed expenses for travel to the U.S. to work for Sewon and return travel to Mexico;

d. Costs to purchase essential furniture and household goods upon arrival; and

e. Lost wages in the form of the difference between the wages promised in the support letter and the lower wages actually paid.

[Doc. 25 ¶¶ 272, 333, 356]; see also [id. ¶¶ 105-07, 109, 111, 182-84, 186, 188, 270-71, 304, 312, 337]. Defendants first contend that plaintiffs cannot establish causation because plaintiffs voluntarily applied for the positions in the United States and were willing to move prior to either defendant committing any predicate act and thus, they “fail to establish that they would have not incurred such injuries but for the [d]efendants' alleged misrepresentations[.]” [Doc. 26-1 at 9-11; Doc. 27-1 at 9-12]. However, as discussed in a case with nearly identical factual circumstances, there was “no guarantee that [p]laintiffs would have received an offer to work in the United States if [Sewon] had not contracted with [TESS] to hire staff, and [TESS] ․ had not decided to interview and hire them,” and it “would be improper to conclude that the [p]laintiffs were going to incur the costs of obtaining the TN visa regardless of the job offer because they would not have [had] the opportunity to incur the costs associated with travel to and from the U.S. Consulate or Mexico without having received the job offer.” Aquino, 2024 WL 2764047, at *19. Indeed, “the costs were incurred directly because [p]laintiffs accepted a job offer (that was based on information provided by [Sewon] ․) from [TESS] based on what turned out to be fraudulent misrepresentations.” Id.²² Moreover, “there are no better situated plaintiffs who have an incentive to sue,” as the “only people who suffered harm because of this alleged scheme are those who were hired through the scheme” and thus, “no more immediate victim better suited to sue.” Id., at *20 (alterations, citations, and internal marks omitted). Therefore, the Court finds plaintiffs' “allegations are enough to satisfy the causation requirement at this juncture.” Virtus Pharms., LLC, 2022 WL 2829634, at *9; see also Carmen, 2023 WL 5104066, at *12 (finding plaintiffs “plausibly alleged that [ defendant's] predicate acts proximately caused their RICO injury,” since defendant's fraud in foreign labor contracting “persuaded [p]laintiffs to immigrate” and its visa fraud “got them into the country”).²³

Finally, defendants maintain that plaintiffs cannot establish a loss to business or property. [Doc. 26-1 at 11-12; Doc. 27-1 at 12; Doc. 29 at 5-6; Doc. 30 at 3-5]. In particular, defendants argue that plaintiffs cannot recover for travel costs to and from the U.S. consulate, the visa processing fees, or unreimbursed travel expenses for travel to the United States to work for Sewon, since the injuries were incurred while plaintiffs were still in Mexico, see [Doc. 29 at 5-6; Doc. 30 at 3-4], but their reliance on RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325 (2016), is misplaced, as clarified in Yegiazaryan v. Smagin, 599 U.S. 533 (2023). In Yegiazaryan, the Supreme Court held that “determining whether a plaintiff has alleged a domestic injury for purposes of RICO is a context-specific inquiry that turns largely on the particular facts alleged in a complaint,” and “courts should look to the circumstances surrounding the alleged injury to assess whether it arose in the United States,” which “means looking to the nature of the alleged injury, the racketeering activity that directly caused it, and the injurious aims and effects of that activity.” 599 U.S. at 543-44 (alteration, footnote, citation, and internal marks omitted). “While it may be true, in some sense, that [plaintiffs have] felt [these] economic injur[ies] in [Mexico], focusing solely on that fact [here] would miss central features of the alleged injur[ies].” Id. at 545. “Much of the alleged racketeering activity that caused the injur[ies] occurred in the United States,” id., including that both the offer letters and the support letters were sent from companies that are based in the United States, see [Doc. 25 ¶¶ 15, 20; Doc. 25-3 at 4, Doc. 25-4 at 2; Doc. 25-5 at 2; Doc. 25-10 at 2; Doc. 25-11 at 2], and the alleged scheme to recruit plaintiffs to work at the Sewon plant was “devised, initiated, and carried out through acts and communications initiated in” Georgia, Yegiazaryan, 599 U.S. at 545-46 (alteration, citation, and internal marks omitted). “Further, the injurious effects of the racketeering activity largely manifested in [Georgia],” id. at 546, as it was not until plaintiffs started working at the Sewon plant that they “learned that the job [they] had been promised did not exist,” [Doc. 25 ¶¶ 110, 112, 187, 189]. “Accepting [p]laintiffs' factual averments as true, there is no doubt that the [p]laintiffs were injured by racketeering activity either taken in Georgia or directed from Georgia, with the aim and effect of getting [p]laintiffs to Georgia using a TN visa to secure cheap labor,” but “there is also no doubt that not all of [p]laintiffs' injuries were suffered in Georgia” and “[s]o, while some of the injurious effects of the racketeering activity manifested in Georgia, some of the effects were felt in Mexico.” Aquino, 2024 WL 2764047, at *21 (alterations, citation, and internal marks omitted). “Considering both factors, the injurious aims of the activity, and the overall circumstances of the case,” id. (citation and internal marks omitted), including that the “damages [p]laintiffs incurred while in Mexico were all necessary for them to recover their TN visas, which were required for [d]efendants to be able to achieve their goal of securing cheap labor in the United States,” that the TN visa application fee “was paid to the United States Government” even though it was made in Mexico, and that “at least some of [p]laintiffs' travel costs from Mexico to the United States must have been spent in the United States,” id., the Court finds plaintiffs' “allegations [are sufficient] to state a domestic injury in this suit,” Yegiazaryan, 599 U.S. at 546.

Plaintiffs also allege “[l]ost wages in the form of the difference between the wages promised in the support letter and the lower wages actually paid.” [Doc. 25 ¶ 272]. Defendants argue that plaintiffs' alleged lost wages “are not losses to ‘business or property’ under Georgia RICO,” [Doc. 29 at 6; Doc. 30 at 4], and that their “baseless pleading of wage underpayments does not enable them to avoid dismissal,” [Doc. 26-1 at 11; Doc. 27-1 at 12]. However, “without the benefit of discovery the Court is unable to determine” the amount each plaintiff actually earned or whether plaintiffs were in fact underpaid, Aquino, 2024 WL 2764047, at *23 (footnote omitted), but “[t]aking [p]laintiffs' allegations and the reasonable inferences that follow from them at face value,” Carmen, 2023 WL 5104066, at *11, it appears that plaintiffs relied on the salaries listed in the offer and/or support letters in making their decision to accept employment at the Sewon plant, but they allege they were paid less than the salaries listed in the offer and support letters, see [Doc. 25 ¶¶ 91, 93, 117-20, 138, 161, 173, 192-97].²⁴ Regardless, plaintiffs have sufficiently alleged other injuries to “survive a Rule 12(b) motion[.]” Lewis v. La. State Univ., CIVIL ACTION NO. 21-198-SM-RLB, 2022 WL 2187098, at *19 (M.D. La. June 16, 2022) (footnote omitted), aff'd sub nom. Lewis v. Danos, 83 F.4th 948 (5th Cir. 2023). While “[i]t remains to be seen whether the evidence supports [plaintiffs'] allegations that [d]efendants violated [the Georgia] RICO [Act],” plaintiffs allege “enough to survive dismissal under Rule 12(b)(6).” Virtus Pharms., LLC¸ 2022 WL 2829634, at *10. Accordingly, it is RECOMMENDED that TESS's motion to dismiss, [Doc. 26], and Sewon's partial motion to dismiss, [Doc. 27], be DENIED as to plaintiffs' Georgia RICO claim.

3. RICO Conspiracy

Defendants also argue that plaintiffs cannot establish a RICO conspiracy claim under O.C.G.A. 16-14-4(c), since when “an underlying RICO claim fails to state a claim, a corresponding RICO conspiracy claim arising from the same conduct likewise [f]ails,” [Doc. 29 at 14 (citation omitted); Doc. 30 at 12], or alternatively, because plaintiffs “fail to plead factual averments showing [defendants] formed a conspiratorial agreement, knowingly joined a conspiracy to commit predicate acts or [that TESS] received direction from Sewon to engage in any of the alleged predicate acts,” [Doc. 26-1 at 20; Doc. 27-1 at 20]. “Under the Georgia RICO statute, it is unlawful for any person to ‘conspire or endeavor to violate’ Georgia RICO,” and defendants “may be liable for conspiracy to violate Georgia RICO ‘if they knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts.’ ” Turk, 593 F. Supp. 3d at 1310 (citation omitted) (quoting O.C.G.A. § 16-14-4(c)). “An agreement to join a conspiracy need not be express, nor does it require a meeting of the minds to the same degree necessary to form a contract, but there must at least be a tacit mutual understanding between persons to pursue a common criminal objective.” J.C., 624 F. Supp. 3d at 1324 (citation and internal marks omitted). “The essence of conspiracy is a common design, and conduct which discloses a common design.” Id. (citation and internal marks omitted).²⁵

Defendants' argument that plaintiffs' conspiracy claim should be dismissed for the same reasons as their underlying RICO claim “fails for the reasons discussed in the preceding sub-sections.” Nair, 2022 WL 16543280, at *6. In addition, “to the extent [d]efendants also assert that [p]laintiffs' [conspiracy] claim fails because [p]laintiffs have failed to adequately allege that [d]efendants conspired to commit a civil RICO violation, the Court disagrees.” Id. As previously discussed, plaintiffs allege that defendants conspired to hire them and others to work as manual laborers on the production line at the Sewon plant, misrepresented to plaintiffs the jobs they would be performing, and assisted plaintiffs in obtaining TN visas meant for professional level jobs by making false representations. See generally [Doc. 25]. “This alleged conduct gives rise to the reasonable inference of an agreement between [defendants] ․ to achieve the overall objective of [employing plaintiffs as manual laborers despite representing to plaintiffs and the United States government that plaintiffs would be performing professional-level jobs].” Nair, 2022 WL 16543280, at *6. “Plaintiffs' allegations are therefore sufficient at this stage of the case.” Id. Accordingly, it is RECOMMENDED that TESS's motion to dismiss, [Doc. 26], and Sewon's partial motion to dismiss, [Doc. 27], be DENIED as to plaintiffs' RICO conspiracy claims.

B. Breach of Contract

Plaintiffs assert a breach of contract claim against Sewon, [Doc. 25 ¶¶ 349-57], alleging that “[i]n [the] written offer letters, together with terms provided in the [s]upport [l]etters, Sewon made written offers of employment to [p]laintiffs ․ which contained material terms of their employment, including that these jobs would be highly skilled engineer positions paying a certain rate of pay which would be eligible for the TN visa”; that plaintiffs “accepted the material terms of employment offered by [d]efendants and forbore other opportunities of employment and undertook certain expenses in exchange for that employment as offered”; that defendants “did not provide employment to [p]laintiffs ․ as offered, but rather, provided manual labor jobs on its production line which were not eligible for TN visas, for wages that were lower than the wage promised in the support letters”; and that defendants “thus breached their contracts with [p]laintiffs,” [id. ¶¶ 352-55]. Sewon moves to dismiss plaintiffs' breach of contract claim asserted against it, arguing that plaintiffs were at-will employees whose terms and conditions of employment could be changed at any time, that they have failed to adequately allege an enforceable contract based on the offer and support letters, and that plaintiffs waived their breach of contract claims. [Doc. 27-1 at 21-28; Doc. 29 at 15-25].

“To state a claim for breach of contract under Georgia law, [plaintiffs] had to plausibly allege that [defendants] owed [them] a contractual obligation, then breached it, causing [them] damages.” Tims v. LGE Cmty. Credit Union, 935 F.3d 1228, 1237 (11th Cir. 2019) (citation omitted); see also Old Mo. Bank v. Vinyard, CIVIL ACTION FILE NO. 1:22-CV-2685-TWT, 2023 WL 4422845, at *2 (N.D. Ga. July 10, 2023) (citation omitted) (“In Georgia, the elements of breach of contract are ‘the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.’ ”). To constitute a valid contract under Georgia law, “there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” Doe v. Emory Univ., CIVIL ACTION FILE NO. 1:20-CV-2002-TWT, 2021 WL 358391, at *5 (N.D. Ga. Jan. 22, 2021) (internal marks omitted) (citing O.C.G.A. § 13-3-1).

While the Court acknowledges that a “supposed contract based on [TN] visa materials fails to satisfy several of these elements,” Mosquera v. MTI Retreading Co., 745 F. App'x 568, 574 (6th Cir. 2018) (unpublished), and that the support letters addressed to the U.S. Consulate in Mexico lack “legally cognizable consideration,” because “employers hiring certain foreign workers are required by law to apply for a[ ] [TN] visa,” id. (citations and internal marks omitted), which requires the employer to provide documentation, which can be in the form of a letter, regarding the visa applicant's employment in the United States, see 8 C.F.R. § 214.6(d)(3)(ii) (requiring a TN visa applicant to present documentation sufficient to satisfy the consular officer “that the applicant is seeking entry to the United States to engage in business activities for a United States employer(s) or entity(ies) at a professional level, and that the applicant meets the criteria to perform at such a professional level”); see also Pouliot v. Bd. of Trs. of the Univ. of Ill., Case No. 18 C 6147, 2019 WL 1057316, at *1 (N.D. Ill. Mar. 6, 2019) (stating that the TN visa “process required plaintiff to obtain a letter from [her employer sponsoring her visa] indicating she would be employed if she secured the visa”); Castellanos v. Worldwide Distrib. Sys. USA, LLC, Case No. 14-cv-12609, 2015 WL 13862060, at *1 (E.D. Mich. Aug. 19, 2015) (citing 8 C.F.R. §§ 214.6(d)-(e)) (stating that a person seeking a TN visa is required “to present, among other criteria, a letter of employment in the United States”), plaintiffs allege here that the offer letters, together with the support letters, form the basis of the employment contract, see [Doc. 25 ¶ 352].²⁶

Although Sewon maintains that because “Georgia is an at-will employment state” and plaintiffs “admit ․ that they are at will employees of Sewon,” this “should end the matter,” [Doc. 29 at 16 (citations omitted)], “terminable-at-will employment does not give an employee a contractual right to remain employed,” but “an at-will employment relationship can give rise to certain contractual rights” and “the original terms for compensation are enforceable for that work actually performed under the contract,” de la Fuente, 704 F. Supp. 3d at 1338-39 (citation and internal marks omitted). And, despite defendants' arguments that plaintiffs have failed to allege an enforceable contract based on the offer and support letters, [Doc. 29 at 19-23], Ruiz was sent a second job offer letter on June 21, 2021, [Doc. 25-5], and Serrano was sent a job offer letter on August 19, 2021, [Doc. 25-10], both of which appear to have been sent contemporaneously with support letters, [Doc. 25-4 (June 21, 2021, support letter on behalf of Ruiz); Doc. 25-11 (August 20, 2021, support letter on behalf of Serrano)], and these job offer letters “establish the nature and character of the services to be performed, the place of employment, and the amount of compensation to be paid,” and the “lack of [p]laintiffs' signatures does not defeat the potential validity of the contracts,” de la Fuente, 704 F. Supp. 3d at 1339 (citation omitted). Moreover, the “offers were for employment ‘up to three years’ and therefore were performable in less than a year,” and therefore, “the agreements did not need to be consented to in writing to be valid.” Id. (citation omitted); see also [Docs. 25-5 & 25-10]. “While the indefiniteness of ‘up to three years' may result in the contracts’ employment being at-will, any recovery is not necessarily barred,” as plaintiffs “may still be entitled to work actually performed under the contract,” such as “costs of traveling to Georgia.” de la Fuente, 704 F. Supp. 3d at 1339 (citation and internal marks omitted). Thus, dismissal on these grounds “is improper here.” Id.

Sewon also argues that plaintiffs “waived their right to sue on their purported contract with Sewon by continuing to perform under the contract for many months after the alleged breach,” since a “party's right to pursue remedies for breach must be asserted promptly.” [Doc. 27-1 at 27 (citations omitted)]; see also [Doc. 29 at 24]. In response, plaintiffs contend that Sewon cannot meet its high burden of showing waiver, since it “offers no clear and unmistakable evidence that [p]laintiffs intended to voluntary relinquish their contract rights,” and that even if Sewon could meet its burden, “the alleged waiver would still be unenforceable because it is against the public interest.” [Doc. 28 at 39-41 (citations and internal marks omitted)].

“To establish that [plaintiffs] waived a breach of contract claim, [Sewon] must show that the only reasonable explanation for [plaintiffs to continue to work for Sewon] is that [they] intended to waive such a claim.” Seok Hwi Cha v. YP's Kani, Inc., 317 F. Supp. 3d 1215, 1220 (N.D. Ga. 2018) (citation omitted). That is, “[a] party may by his conduct waive a legal right but where the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless his acts or omissions to act are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of his conduct is possible.” MNM 5, Inc. v. Anderson/6438 Ne. Partners, Ltd., 451 S.E.2d 788, 791 (Ga. Ct. App. 1994) (citations omitted). “Waiver is generally a question for the jury except in situations where the facts and circumstances essential to the question are clearly established.” Holiday Hosp. Franchising, LLC v. N. Riverfront Marina & Hotel, LLLP, CIVIL ACTION FILE NO. 1:21-CV-2584-TWT, 2021 WL 3798561, at *3 (N.D. Ga. Aug. 26, 2021) (citation and internal marks omitted). “At this stage in the proceedings, [ Sewon has] not met [its] burden in establishing [ plaintiffs'] waiver of [their] contractual rights,” as defendants “have not identified any factual allegations in the [first amended class action c]omplaint that would indicate waiver beyond mere inaction.” Id. (citation and internal marks omitted). “While waiver predicated on silence or inaction is possible, such a determination is one for the jury,” and consequently, “the Court cannot conclude [ p]laintiff[s] waived [their] rights at this time, and [ d]efendants' waiver argument fails.” Id. (citation omitted). Accordingly, it is RECOMMENDED that Sewon's partial motion to dismiss, [Doc. 27], be DENIED with respect to plaintiffs' breach of contract claims asserted against it.

IV. CONCLUSION

For the foregoing reasons, plaintiffs' motion for leave to file a surreply, [Doc. 31], is GRANTED, and the Clerk is DIRECTED to enter the surreply, [Doc. 31-1], on the docket, and it is RECOMMENDED that TESS's motion to dismiss, [Doc. 26], and Sewon's partial motion to dismiss, [Doc. 27], be DENIED.

IT IS SO ORDERED, DIRECTED, and RECOMMENDED this 11th day of December, 2024.

FOOTNOTES

2.   TESS works on behalf of Sewon to recruit foreign national workers for the purpose of job placement in Sewon's United States-based automotive parts manufacturing company.

3.   TN visas are visas created by the North American Free Trade Agreement “to permit Mexican and Canadian professionals in certain occupations ․ to temporarily enter the United States for employment within their profession.” [34] at 8 (citations omitted).

4.   Ruiz began working on August 15, 2021, and Serrano began working on September 30, 2021.

5.   Sewon does not move to dismiss the FLSA claim against it.

6.   Macort dealt only with the standard of review to be applied to a magistrate judge's factual findings, but the Supreme Court has indicated that there is no reason for the district court to apply a different standard to a magistrate judge's legal conclusions. Thomas v. Arn, 474 U.S. 140, 150 (1985). Thus, district courts in this circuit have routinely reviewed both legal and factual conclusions for clear error. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373–74 (N.D. Ga. 2006) (collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (holding that when a magistrate judge's findings of fact are adopted by the district court without objection, they are reviewed on appeal under a “plain error standard” while questions of law always remain subject to de novo review).

7.   The R&R also granted Plaintiffs' motion [31] to file a surreply. The R&R notes that Judge Vineyard considered the Plaintiffs' surreply and that it did not alter his analysis or conclusion. See [34] at 2 n.2.

8.   The causation and injury requirements are “often referred to as RICO's statutory standing requirement.” Keeton v. Gynecare Worldwide, No. 15-20442, 2016 WL 2753866, at *2 (S.D. Fla. Jan. 29, 2016), report and recommendation adopted sub nom. Keeton v. Johnson & Johnson, No. 15-civ-20442, 2016 WL 2753667 (S.D. Fla. Mar. 31, 2016).

9.   Plaintiffs attached the offer letters and support letters as exhibits to the operative complaint; therefore, the Court is able to consider both the offer and support letters. See Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (per curiam) (“Ordinarily, we do not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss.” (citation omitted)).

1.   The Court refers to plaintiffs by the names used in the first amended class action complaint. See [Doc. 25]. The listed document and page numbers in citations to the record in this Non-Final Report, Recommendation, and Order refer to the document and page numbers shown on the Adobe file reader linked to the Court's electronic filing database, CM/ECF.

2.   “Neither the Federal Rules of Civil Procedure nor this Court's Local Rules authorize the filing of surreplies.” Atlanta Fiberglass USA, LLC v. KPI, Co., 911 F. Supp. 2d 1247, 1262 (N.D. Ga. 2012) (citation and internal marks omitted); see also Leatherwood v. Anna's Linens Co., 384 F. App'x 853, 857 (11th Cir. 2010) (per curiam) (unpublished) (citation omitted). “Although the Court may in its discretion permit the filing of a surreply, this discretion should be exercised in favor of allowing a surreply only where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005) (citation omitted); see also St. James Ent. LLC v. Dash Crofts, Civil Action No. 1:09-CV-1975-RWS, 2010 WL 2802616, at *1 (N.D. Ga. July 13, 2010) (“Certainly, the Court is disinclined to consider arguments raised in a surreply which could have been raised in an earlier filing.”). Otherwise, “[t]o allow such surreplies as a regular practice would put the court in the position of refereeing an endless volley of briefs.” Atlanta Fiberglass USA, LLC, 911 F. Supp. 2d at 1262 (citation and internal marks omitted). Because defendants raised new arguments in their reply briefs, see generally [Docs. 29 & 30], plaintiffs have shown good cause for filing a surreply, and the Court will consider plaintiffs' surreply, [Doc. 31-1]. Moreover, “consideration of [plaintiffs'] surreply does not alter the Court's analysis or its conclusion.” Lowe v. Exel, CIVIL CASE NO. 3:17-cv-00014-TCB-RGV, 2018 WL 2016277, at *1 n.2 (N.D. Ga. Apr. 27, 2018) (citation and internal marks omitted), adopted sub nom. Lowe v. Exel, Inc., CIVIL ACTION FILE NO. 3:17-cv-14-TCB, 2018 WL 11170101, at *2 (N.D. Ga. May 31, 2018), aff'd, 758 F. App'x 863 (11th Cir. 2019) (per curiam) (unpublished).

3.   The factual background is taken from the pleadings and exhibits and does not constitute findings of fact by the Court. Plaintiffs have attached to their first amended class action complaint various exhibits, including offer letters plaintiffs received, support letters sent to the U.S. Consulate General in Mexico, and instructions plaintiffs received for the visa application process. See [Docs. 25-1 through 25-15]. The documents attached to plaintiffs' first amended class action complaint are considered part of the pleading, see Fed. R. Civ. P. 10(c), and therefore, may be considered by the Court in ruling on defendants' motions to dismiss, Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (per curiam); Owens v. Metro. Life Ins. Co., Civil Action No. 2:14-CV-00074-RWS, 2015 WL 1651125, at *3 (N.D. Ga. Apr. 14, 2015) (citing Fed. R. Civ. P. 10(c)) (“[D]ocuments attached to a complaint are considered part of the complaint.”).

4.   Plaintiffs allege that “Engineer and Scientific Technician/Technologist are among the categories of professionals permitted entry into the United States with TN visas,” [Doc. 25 ¶ 38 (citing 8 C.F.R. § 216.4(c))], and that a “TN visa applicant must engage in a prearranged business activity at a professional level for a U.S. or foreign employer,” [id. ¶ 40 (citation and internal marks omitted)]. Plaintiffs also allege that a TN visa “is tied to the associated employer for the duration of the TN visa period, unless a different employer submits a [p]etition ․ to [ ] seek[ ] to add or change employers.” [Id. ¶ 250 (citation omitted)].

5.   Also on June 21, 2021, Sewon provided Ruiz with a second offer letter signed by Jung to provide to U.S. Immigration officials “for the purpose of securing a TN visa” that stated Sewon was offering Ruiz employment as an Industrial Engineer for up to three years at an annual salary of $36,000. [Doc. 25 ¶¶ 92-94 (citation omitted); Doc. 25-5 at 2].

6.   Plaintiffs allege that the job qualifications and the job description outlined in the job offers and support letters provided to the U.S. Consulate in Mexico to secure their TN visas “were false” and “fraudulent.” [Doc. 25 ¶¶ 95-96, 108, 112-13, 115, 172, 185, 189-91]. Additionally, plaintiffs assert that defendants provided them with instructions prior to their mandatory interviews with the U.S. Consulate, including directing them to learn the information in their support letters and providing documents containing suggested answers to possible questions. [Id. ¶¶ 98-104, 174, 176-81].

7.   Plaintiffs allege that they “incurred travel and food costs which were never reimbursed” in relation to their travel for the visa interviews, as well as costs associated with submitting the TN visa application. [Doc. 25 ¶¶ 105-07, 182-84].

8.   Ruiz began working at the Sewon plant on August 15, 2021, and Serrano began his employment with Sewon on September 30, 2021. [Doc. 25 ¶¶ 110, 187].

9.   Plaintiffs assert that they “bring their RICO and contract claims on behalf of themselves and a [c]lass of persons,” and that “[f]or purposes of the FLSA, [they] bring this suit on behalf of themselves and ․ all similarly situated workers who worked at the Sewon plant within [ ] the three-year period before the filing of [the c]omplaint, who elect to opt-in ․ under the FLSA[.]” [Doc. 25 ¶¶ 280, 312].

10.   TESS filed a motion to dismiss the Georgia RICO and breach of contract claims asserted in plaintiffs' first amended class action complaint, see [Doc. 26-1]; however, as plaintiffs point out, they did not assert their breach of contract claim against TESS, [Doc. 28 at 5 n.5]; see also [Doc. 25 at 70]. Indeed, the only claim asserted against TESS in the first amended class action complaint is the Georgia RICO claim. See [Doc. 25]. Additionally, Sewon only moves to dismiss the Georgia RICO and breach of contract claims and does not seek dismissal of plaintiffs' FLSA claims, but notes that it “will respond to [p]laintiffs' FLSA allegations after this Court rules on its partial motion to dismiss.” See [Doc. 27-1 at 2 n.2 (citations omitted)].

11.   Plaintiffs point out that because the “brief filed by TESS ․ is nearly identical to the one filed by Sewon,” they “consolidate[d] their responses in opposition to both motions[.]” [Doc. 28 at 1 n.1 (citations omitted)].

12.   “However, the court need not ‘accept as true a legal conclusion couched as a factual allegation.’ ” Smith v. Delta Air Lines, Inc., 422 F. Supp. 2d 1310, 1324 (N.D. Ga. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Hornady v. Outokumpu Stainless USA, LLC, 118 F.4th 1367, 1383 (11th Cir. 2024) (citation omitted) (explaining that “[u]nder 12(b)(6), ․ legal theories contained in a complaint are not accepted as true”); Holland v. Carnival Corp., 50 F.4th 1088, 1093 (11th Cir. 2022) (citation omitted). “Additionally, ‘[c]onclusory allegations and unwarranted deductions of fact are not admitted as true, especially when such conclusions are contradicted by facts disclosed by a document appended to the complaint. If the appended document ․ reveals facts which foreclose recovery as a matter of law, dismissal is appropriate.’ ” Smith, 422 F. Supp. 2d at 1324 (alteration in original) (footnote omitted) (quoting Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)). Decisions of the Fifth Circuit rendered before October 1, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

13.   “The Georgia RICO Act is modeled on the federal RICO statute and, in the absence of Georgia authority, Georgia courts often look to federal decisions for guidance on the interpretation of similar provisions of the Georgia RICO Act.” Wade Park Land Holdings, LLC v. Kalikow, 522 F. Supp. 3d 1341, 1354 (N.D. Ga. 2021) (citation and internal marks omitted).

14.   A “pattern of racketeering activity for purposes of subsection (a) means the commission of at least two ․ predicate acts, provided that they are interrelated and were done in furtherance of one or more incidents, schemes, or transactions,” and “unlike for [f]ederal RICO claims, plaintiffs do not have to show continuity to establish a pattern of racketeering activity under Georgia RICO.” Turk, 593 F. Supp. 3d at 1299-1300 (citations and internal marks omitted).

15.   “Civil RICO claims, which are essentially a certain breed of fraud claims, must be pled with an increased level of specificity.” LifeBrite Lab'ys, LLC, 2024 WL 3034336, at *11 (citation and internal marks omitted). “Courts have therefore applied Rule 9(b)'s heightened pleading standard to RICO claims,” and to satisfy this standard, “RICO complaints must allege: (1) the precise statements, documents, or misrepresentations made; (2) the time and place of and person responsible for the statement; (3) the content and manner in which the statements misled the [p]laintiffs; and (4) what the [d]efendants gained by the alleged fraud.” Id. (alterations in original) (citation and internal marks omitted). “Specificity under Rule 9(b) does not, however, eliminate the concept of notice pleading,” and the “particularity requirement may be relaxed for allegations of prolonged multi-act schemes,” which would permit plaintiffs “to plead the overall nature of the fraud and then to allege with particularity one or more illustrative instances of the fraud.” Id., at *12 (citations and internal marks omitted).

16.   The Georgia RICO Act also defines “[r]acketeering activity” as including any conduct defined as racketeering activity under the federal RICO statute. See O.C.G.A. § 16-14-3(5)(C) (internal marks omitted).

17.   “Mail or wire fraud occurs when a person (1) intentionally participates in a scheme to defraud another of money or property and (2) uses the mails or wires in furtherance of that scheme.” Aquino v. Mobis Ala., LLC, CIVIL ACTION FILE NO. 3:22-cv-145-TCB, 2024 WL 2764047, at *14 (N.D. Ga. May 28, 2024) (citation and internal marks omitted); see also United States v. Roemmele, No. 04–60206–CR–Cohn, 2011 WL 4625357, at *4 (S.D. Fla. Aug. 3, 2011) (citations omitted) (explaining that “courts have long recognized that the wire fraud statute governs fraud committed via the internet”), adopted by 2011 WL 4625348, at *7 (S.D. Fla. Oct. 3, 2011). “Pleading mail and wire fraud requires that the defendant[s] agreed to participate in a scheme to defraud and that [defendants] ․ caused the mail or wires to be used in furtherance of the scheme,” but “the precise manner in which these frauds are committed is not required to be pleaded.” Aquino, 2024 WL 2764047, at *14 (citation and internal marks omitted). “Visa fraud and fraud in foreign labor contracting prohibit largely the same conduct, but differ in the person to whom [ ] defendant[s] direct[ ] the misrepresentations,” since “[v]isa fraud involves misrepresentations made on immigration forms submitted to the government” and “fraud in foreign labor contracting involves misrepresentations to the foreign worker.” Id. (citation and internal marks omitted). In addition to these alleged predicate acts, plaintiffs also allege that defendants violated O.C.G.A. § 16-10-20, which prohibits the use of a “false, fictitious, or fraudulent statement or representation” or the use of “any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of [the] state[.]” O.C.G.A. § 16-10-20. Plaintiffs “need not demonstrate reliance on the statements allegedly made in violation of O.C.G.A. § 16-10-20,” Am. Ins. Mgmt. Grp., Inc. v. Am. Nat'l Ins. Co., CIVIL ACTION NO. 1:05-CV-0352-JEC, 2007 WL 9710013, at *13 (N.D. Ga. Mar. 30, 2007), and “need only show that the statement was made in a matter within jurisdiction of one or more ․ government agencies,” Stewart-Jackson Pharmacal, Inc. v. River's Edge Pharms., LLC, CIVIL ACTION FILE NO. 1:10-CV-2037-HLM, 2010 WL 11602697, at *12 (N.D. Ga. Sept. 24, 2010) (alteration, citation, and internal marks omitted). Additionally, “courts read ‘jurisdiction’ broadly to cover all matters confided to the authority of any agency or department.” Id. (citation and internal marks omitted).

18.   “Importantly, [a]n essential element of any fraud claim is that defendant[s] knew [their] representation[s were] false,” and this “is equally true for the predicate acts” alleged in plaintiffs' first amended class action complaint. Lechter, 565 F. Supp. 3d at 1318 (first alteration in original) (citations and internal marks omitted). Plaintiffs “do not have to provide direct evidence that [d]efendants knew ․ that [their] representations were fraudulent,” but plaintiffs' “allegations regarding [d]efendants' knowledge of the fraud cannot be merely conclusory and unsupported by any factual allegations.” Id. at 1318-19 (citation and internal marks omitted). Plaintiffs have specifically alleged that TESS, a recruiter with a contract with Sewon to recruit employees to work at Sewon's plant, works closely with its clients to fulfill the staffing needs of the client and that TESS knowingly provides TN visa workers to satisfy a request for more general laborers to keep costs down even though TESS is well aware that the general laborer jobs do not qualify for a TN visa, [Doc. 25 ¶¶ 21-22, 50, 58, 60-64, 222-23, 237, 332], and these allegations distinguish the present case from the facts present in Aquino, where the Court found that plaintiffs had “allege[d] nothing that would allow the Court to plausibly infer that TESS knew the statements being made to [one of the plaintiffs] were false” or “that TESS ever knew the jobs were not what they were held out to be,” since TESS's role was as an “intermediary” between plaintiff and a staffing agency and the staffing agency was the point of contact with the automobile plant that the worker would eventually work at, 2024 WL 2764047, at *27. In short, the instant first amended class action complaint does not suffer from the same deficiency in this regard that was present in Aquino.

19.   Defendants argue that plaintiffs cannot establish the predicate acts of mail or wire fraud, fraud in foreign labor contracting, or visa fraud, and that their “claim must fail because they [ ] fail to identify and plead with any specificity ‘misrepresentations’ made by [either defendant],” since Sewon “retained the authority to change the terms and conditions of [p]laintiffs' employment at all times so a change in job duties is insufficient to establish fraud,” [Doc. 26-1 at 15-17; Doc. 27-1 at 16-17]; however, this argument misses the mark because plaintiffs have not alleged that Sewon simply changed the terms of their employment, but instead have alleged that defendants knew the jobs presented and offered to plaintiffs never existed in the first place and that defendants engaged in a bait-and-switch to lull them into accepting employment for non-existent positions as presented in the offer and support letters and then assigned them manual labor on production lines that did not qualify for the TN visa requirements, see generally [Doc. 25]. That is, plaintiffs allege that defendants misrepresented the type of jobs they were accepting and would be performing and that defendants never intended to place them in the TN visa qualifying jobs for which they applied and received offer letters and TN visas. See [id.]. “[A]ccepting the [first amended class action] complaint's allegations as true and construing them in the light most favorable to [ ] plaintiff[s],” as the Court must on a motion to dismiss, Newbauer v. Carnival Corp., 26 F.4th 931, 934 (11th Cir. 2022) (citation and internal marks omitted), the Court finds plaintiffs have plausibly alleged an intent to defraud by defendants, see [Doc. 25].

20.   As previously discussed, to “state a claim under subsection (b) of Georgia RICO, [p]laintiffs would also have to show that the ․ [d]efendants engaged in the alleged misconduct through their participation in an ‘enterprise.’ ” Turk, 593 F. Supp. 3d at 1310. “Georgia RICO defines an ‘enterprise’ as ‘any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity.’ ” Id. (quoting O.C.G.A. § 16-14-3(3)). “That definition includes illicit as well as licit enterprises and governmental as well as other entities,” and the “analogous provision of [f]ederal RICO similarly defines an ‘enterprise’ as any group of individuals associated in fact,” which the Supreme Court has interpreted as “a continuing unit that functions with a common purpose.” Id. (alteration, citations, and internal marks omitted). As plaintiffs point out, “[d]efendants do not offer any real argument as to why [p]laintiffs have not adequately pled a Georgia RICO enterprise,” [Doc. 28 at 19 (citations omitted)], and “[f]or purposes of the pleading stage, the Court finds that [p]laintiffs have plausibly alleged that [TESS and Sewon] ․ acted as part of an association-in-fact enterprise,” Turk, 593 F. Supp. 3d at 1310. Indeed, for the reasons set forth in plaintiffs' brief, see [Doc. 28 at 20-22], plaintiffs “plead sufficient facts for the Court to conclude that [Sewon] and TESS agreed to pursue the common purpose” of “securing cheap manual labor to work at the [Sewon] plant and to profit from such labor,” Aquino, 2024 WL 2764047, at *9, 25 (citation and internal marks omitted). Specifically, plaintiffs allege: TESS's owner's practice “has been to communicate directly” with its clients such as Sewon “about their staffing needs” and that TESS's owner has “received communication from an employer's representative indicating that it needed more general laborers for its facility, as opposed to TN visa workers,” but that TESS's owner still gave directives “to TESS employees to procure TN visa workers from Mexico to fill this request,” [Doc. 25 ¶¶ 61-62]; “TESS agreed with Sewon to publish fraudulent job postings for open engineer positions or other positions with education and skill requirements necessary to make foreign workers qualified for TN visas,” [id. ¶ 212]; Sewon “provided TESS detailed information relating [to the] operations at the Sewon plant to use during recruitment and to include in the TN visa [s]upport [l]etters,” [id. ¶ 213]; TESS and Sewon “decided which candidates to hire” and then Sewon hired them “once they secured a TN visa” and employed them in its plant, [id. ¶¶ 214, 237]; TESS and Sewon had knowledge of TN visa requirements and reviewed the TN visa documents “with full knowledge that the foreign workers were not performing jobs that qualified them to receive the TN visa,” [id. ¶ 217]; defendants agreed to make false representations “that the jobs available at the Sewon plant required the education and skill that would make them eligible for TN visas and entice them to apply, while knowing that these jobs did not exist and that [p]laintiffs and others would be working manual labor production assembly line jobs,” [id. ¶ 218]; defendants “knew that TN visas would not and could not be granted for workers to perform the manual labor positions that Sewon wanted to fill,” [id. ¶ 222]; defendants agreed that they “would misrepresent the production line labor positions (which did not qualify for TN visas) as professional-level engineering and technician job positions (which did qualify for TN visas),” [id. ¶ 223]; and when TESS and Sewon provided the “fraudulent TN visa [s]upport [l]etters to the [p]laintiffs and other foreign workers, ․ [the d]efendants knew that the letters included false descriptions of the job positions available for the [p]laintiffs and other workers,” [id. ¶ 229], to show the existence of an association-in-fact enterprise between TESS and Sewon. “At this stage in the litigation, taking [p]laintiffs' allegations as true, they clearly allege an ‘enterprise,’ or an association-in-fact, ‘that furnishes a vehicle for the commission of the alleged pattern of racketeering activity.’ ” Jordan, 2007 WL 4287719, at *4 (alterations and citation omitted). And, while defendants also argue that plaintiffs' allegations are insufficient to demonstrate that they participated in the operation or management of the enterprise, [Doc. 29 at 11-12; Doc. 30 at 9-10], plaintiffs need only allege that defendants “played some part in directing the enterprise's affairs, which includes implementing or making decisions related to its affairs,” and plaintiffs' allegations indicate that each defendant “played some part in directing the enterprise's affairs,” Nair v. Patel, CIVIL ACTION NO. 1:21-CV-01217-LMM, 2022 WL 16543280, at *4 (N.D. Ga. Jan. 13, 2022) (alteration, citation, and internal marks omitted); see also Aquino, 2024 WL 2764047, at *13; [Doc. 28 at 23-26].

21.   In addition, to “state a claim for a violation of the federal RICO Act,” plaintiffs must “allege and prove a domestic injury to their business or property,” and likewise, for a Georgia RICO claim, plaintiffs “must also prove a domestic injury.” Glock v. Glock, 247 F. Supp. 3d 1307, 1315, 1318 (N.D. Ga. 2017) (footnote omitted), aff'd, 714 F. App'x 987 (11th Cir. 2018) (per curiam) (unpublished).

22.   While defendants argue that “lack of causation is further supported by the fact that the decision to admit or exclude an alien from the United States is within the plenary power of Congress” and plaintiffs “could have procured travel costs to and from the U.S. consulate for the mandated TN visa interview and paid the U.S. Government via processing fees of $160 per visit; yet, still have been denied their visas,” and thus, “the visa fees and travel costs incurred are a result of [p]laintiffs' action in actively seeking employment in the U.S.” and “not [ d]efendants' alleged misrepresentations,” [Doc. 26-1 at 11 (citations omitted); Doc. 27-1 at 11-12 (citations omitted)], plaintiffs specifically alleged that defendants coached plaintiffs on preparing for their consular interviews to maximize their chances for approval of a TN visa, which included being prepared to answer questions about the support letter that included the alleged fraudulent misrepresentations upon which plaintiffs relied, and securing approval of the TN visa was an essential element of the alleged fraud to enable the plaintiffs to enter the United States to work for Sewon, [Doc. 25 ¶¶ 101-04, 108-09, 157, 163-64, 174, 176-79, 181, 185-86].

23.   Defendants also contend that the initial offer letters plaintiffs agreed to were transparent about the employment terms and that they therefore “incurred and/or agreed to incur [ ] costs prior to any alleged misrepresentations made by [d]efendants [in the subsequent offer or support letters,] thereby severing any causal argument.” [Doc. 29 at 7-10; Doc. 30 at 5-9]. However, while Ruiz's initial offer letter did provide for an hourly wage, it also indicated that he was being hired for the position of “Technical Engineer” and that he would be “performing the job duties and responsibilities ․ as a Technical Engineer,” [Doc. 25-3 at 4 (emphasis omitted)], and Serrano's initial offer letter was for the position of “Maintenance Engineer” at an annual salary of $36,000.00, [Doc. 25-10 at 2], so plaintiffs have plausibly pleaded causation while “genuine disputes of material fact exist as to whether [p]laintiffs were reasonably misled by the [initial and] subsequent offer letters,” de la Fuente v. Columbia Recycling Corp., 704 F. Supp. 3d 1333, 1340–41 (N.D. Ga. 2023).

24.   Additionally, while defendants contend that plaintiffs “did not have a property interest in the salary and job duties,” since they were “premised on ‘at-will employment,’ ” [Doc. 29 at 6 (footnote omitted); Doc. 30 at 4 (footnote omitted)], “terminable-at-will employment does not give an employee a contractual right to remain employed,” but “an at-will employment relationship can give rise to certain contractual rights” and “the original terms for compensation are enforceable for that work actually performed under the contract,” de la Fuente, 704 F. Supp. 3d at 1338-39 (citation and internal marks omitted).

25.   “There is no apparent substantive difference between the requirements for establishing a conspiracy to violate [f]ederal RICO claim and a conspiracy to violate Georgia RICO claim,” Aquino, 2024 WL 2764047, at *30 (citation and internal marks omitted), though the “anti-conspiracy subsection of the Georgia RICO Act takes a[ ] more expansive position than its federal counterpart, outlawing not only conspiracy itself but also attempted conspiracy as well,” Carpenter v. Mohawk Indus., Inc., CIVIL ACTION FILE NO. 4:07-CV-0049-HLM, 2010 WL 11508551, at *16 (N.D. Ga. Nov. 8, 2010) (citation and internal marks omitted), aff'd, 479 F. App'x 206 (11th Cir. 2012) (per curiam) (unpublished). Moreover, “[i]t is true that a party may be liable for RICO conspiracy even if it is not liable for the substantive RICO offense.” AmNet Esop Corp., 2023 WL 9181488, at *19 (citations and internal marks omitted).

26.   Indeed, plaintiffs' allegation in this case that the contractual basis for the breach of contract claims are the written offer letters together with the support letters that provided the material terms distinguishes this case from the facts present in Aquino, in which the “operative complaint base[d] the breach of contract claims [solely] on the support letters,” pointing out that plaintiffs “never mention[ed] the offer letters in the operative pleading” as the “basis for their claim.” 2024 WL 2764047, at *5-6.

RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE