MEMORANDUM OPINION AND ORDER

LYNWOOD SMITH, District Judge.

Plaintiffs, Jennifer Hall and Jose Rocha, formerly worked as hourly-wage employees in the Russellville, Alabama poultry processing plant originally owned by Gold Kist, Inc., but subsequently acquired by Pilgrim's Pride Corporation.1 More than three years ago, plaintiff Jennifer Hall commenced this suit as a putative class action, alleging that, over the four years preceding the date of her complaint, defendants, Phyllis Thomas and Gloria Fisher, conspired "with their fellow Gold Kist and Pilgrim's Pride facility human resources... personnel" at several named and unnamed facilities in multiple locations across the country2 for the purpose of "depress[ing] the Class' wages by knowingly employing large numbers of illegal immigrants...."3 Plaintiffs' claims are based upon the Racketeer Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §§ 1961-1968 ("RICO").

In addition to the criminal sanctions provided by RICO, see 18 U.S.C. § 1963(a),4 Congress declared that "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains...." 18 U.S.C. § 1964(c). Section 1962 makes it illegal to participate in a RICO "enterprise" that engages in a "pattern of racketeering activities," or to "conspire" to do so. 18 U.S.C. § 1962(c)-(d); see also Beck v. Prupis, 529 U.S. 494, 506, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) (stating that, to prove a violation of the conspiracy provision, 18 U.S.C. § 1962(d), plaintiff must show that defendants (1) knowingly and willfully joined a conspiracy (2) with the purpose of violating 18 U.S.C. § 1962(c)). To establish the requisite "pattern of racketeering activity," a plaintiff must demonstrate the "commi[ssion] of at least two distinct but related predicate acts." Edwards v. Prime, Inc., 602 F.3d 1276, 1292 (11th Cir.2010) (bracketed alteration added) (quoting Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1282 (11th Cir.2006)).

In this case, the predicate acts plaintiffs claim defendants or their coconspirators engaged in are violations of two provisions of § 274 of the Immigration and Nationality Act ("INA") which—provided plaintiffs can prove that the violations were for financial gain—are defined in RICO as predicate acts. See 18 U.S.C. § 1961(1)(F). Specifically, plaintiffs claim defendants violated 8 U.S.C. § 1324(a)(3)(A), which makes it a federal crime to "knowingly hire[ ] for employment at least 10 individuals with actual knowledge" that those individuals were illegal aliens and were brought into the country illegally, and § 1324(a)(1)(A)(iii), which makes it a federal crime to knowingly or recklessly "conceal[ ], harbor[ ], or shield[ ] from detection" an alien who "has come to, entered, or remains in the United States" illegally. 8 U.S.C. § 1324(a)(1)(A)(iii); id. § 1324(a)(3)(A); see also Edwards, 602 F.3d at 1292-94, 1297-1300 (interpreting these provisions in the RICO context). "RICO claimants ... must [also] show (1) the requisite injury to `business or property,' and (2) that such injury was `by reason of the substantive RICO violation." Williams, 465 F.3d at 1283. Plaintiffs' theory of damages is that defendants' alleged hiring and/or harboring depressed their wages below what they otherwise would have been.5

This action is currently before the court on five motions: (1) defendants' motion for summary judgment;6 (2) defendants' motion to exclude the testimony of Dr. George J. Borjas, plaintiffs' expert witness;7 (3) defendants' motion to exclude the testimony of James M. Johnston, another of plaintiffs' expert witnesses;8 (4) plaintiffs' petition for further discovery pursuant to Federal Rule of Civil Procedure 56(f);9 and (5) plaintiffs' motion to amend the scheduling order.10

I. BACKGROUND

Because the disposition of the motions before this court and, ultimately, the action itself, turns purely on whether plaintiffs have sustained their burden of proving the reliability of their experts, and of providing evidence giving rise to a genuine issue of material fact regarding the technical requirements of the statutory provisions under which they brought suit, recitation of the factual narrative would be both unnecessary and largely unhelpful. Accordingly, the court will dispense with the usual statement of disputed and undisputed facts and address those few facts that are relevant to the substantive determinations in the analysis that follows.

A. Procedural History of the Case

Before delving into the merits of the motions and the substance of the contested testimony, however, it behooves the court to untangle the tortuous procedural history that has placed this case in its present and, as plaintiffs correctly put it, "unique procedural posture."11 A great deal of water has gone under the bridge since this case was filed. That necessarily must factor into whether this court should countenance plaintiffs' request for further discovery, to permit their damages expert to produce the evidence of proximate causation of damages to business or property necessary to establish their prima facie case.12

Plaintiffs filed their initial complaint, putatively on behalf of a nationwide class, on March 16, 2007.13 The complaint asserted that current and former Human Resources personnel at Gold Kist and Pilgrim's Pride chicken processing facilities across the country engaged in a nationwide conspiracy to knowingly employ illegal immigrants in order to depress the wages of native unskilled laborers, like plaintiffs.14 In sum and substance, these are the very same factual allegations plaintiffs asserted in their Second Amended Complaint, filed more than a year later on May 2, 2008.15

On May 7, 2007, defendants—who are individual managers or Human Resources personnel at the Pilgrim's Pride processing facility in Russellville, Alabama16— moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted.17 Twenty-three days later, defendants took the unorthodox step of also moving for summary judgment, contending, among other things, that the allegations in this action were without foundation and were simply copied—virtually verbatim—from at least three other complaints filed by one of plaintiffs' attorneys in other United States District Courts within the six months preceding the filing of plaintiffs' complaint in this case.18 Defendants then moved, on June 12, 2007, to stay discovery pending determination of their motion to dismiss.19

In an order dated June 22, 2007, this court denied as premature defendants' motion for summary judgment and, pursuant to the general rule in this Circuit, stayed discovery pending decision on defendants' motion to dismiss.20 Thereafter, plaintiffs filed a motion for modification of the stay based on what appeared on its face to be the sealed affidavit of an immigration agent created in aid of an ongoing criminal investigation.21 On February 12, 2008, the court heard oral arguments regarding the pending motions and, subsequently, filed a memorandum opinion and order denying defendants' motion to dismiss and lifting the stay on discovery.22 However, noting that the Eleventh Circuit had, in a very similar case (also brought by the same attorney for the plaintiffs), expressed serious concerns with the "particularly difficult proximate causation issues [that] may be presented where a plaintiff alleges nationwide injury" in the form of wage depression resulting from alleged illegal hiring, the court "limited [discovery] to those facts (if any) substantiating plaintiffs allegations of a RICO conspiracy at the Russellville, Alabama Pilgrim's Pride facility."23 Cf. Williams, 465 F.3d at 1290; see also Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 619 (6th Cir.2004) (stating, in yet another similar case brought by plaintiffs' counsel, that "[i]n the face of the[] attenuated links in the chain of causation, [defendant] asserts [that] plaintiffs cannot show proximate cause. [They] may be right—but we cannot say so at this [12(b)(6)] stage in the proceeding."). The order made clear that only upon demonstration of a prima facie case as to that locale would the court consider broadening the scope of discovery nationwide.24

Four days after plaintiffs filed their amended complaint, as required by the same order that denied the motion to dismiss, this court entered the first Scheduling Order governing the initial phase of discovery.25 According to that order, plaintiffs were required to designate and submit their expert reports by April 21, 2008, and all discovery was due to be concluded no later than May 30, 2008.26 A week later, one day before the parties filed the report of their Rule 26(f) meeting,27 plaintiffs filed their first motion to extend the time for designating expert witnesses.28 As defendants noted in their opposition to plaintiffs' motion for extension of time, many of the rationales asserted by plaintiffs to explain why they believed further time was necessary involved uncertainty about facts into which plaintiffs could have made significant inquiry even without discovery, and facts that would seem central to a good faith basis for filing suit in the first instance.29 Plaintiffs also asserted, in the Rule 26(f) meeting, that they would undertake no discovery with respect to damages or proximate causation whatsoever, arguing that the court's orders did not require them to establish those two elements of a prima facie case.30

On April 9, 2008, this court entered a Revised Scheduling Order, making clear that the parties were "to fully explore all aspects of plaintiffs' RICO claim as it relates to the Russellville, Alabama, poultry processing facility during this limited period," including proximate causation of damages resulting from the alleged RICO predicate acts.31 The order stated in no uncertain terms that the initial discovery period was intended to permit plaintiffs to establish a case, supported by sufficient facts on all elements of their claim to survive a motion for summary judgment.32 That order also extended the discovery period through the month of June and, consistent with plaintiffs' requests, provided them one further month in which to designate and file reports of their expert witnesses.33 In so doing, the court warned that the expert deadlines would not again be altered except for good cause shown.34

Nonetheless, one day prior to the expiration of the revised expert designation deadline, plaintiffs moved to extend the deadlines for their experts' reports yet again—seeking a one-week extension for their immigration expert, and three weeks extension for their damages and proximate causation expert.35 Plaintiffs asserted that "good cause" existed for extending the deadline for the report of Dr. George J. Borjas, their damages expert, because the public data upon which he had intended to rely had proven insufficient.36 Despite over forty-five pages of briefing on the extension, plaintiffs provided only a cursory explanation of why the adequacy of publicly-available data to inform the analysis necessary to support their claims could not have been determined during the fourteen months the case had already been pending.37 They also failed to explain why they waited until the eleventh hour, more than a month and a half after entry of the revised scheduling order, to request an extension on that basis.38 Nevertheless, in an effort to afford plaintiffs every opportunity to uncover the evidence necessary to establish their prima facie case, the court granted plaintiffs' motion, providing plaintiffs until June 11, 2008, to tender the report of their damages expert, and until July 10 for the completion of all discovery.39

Even so, on June 17, 2008, nearly a week after the date by which plaintiffs were to have tendered their damages expert's report, the parties filed yet another motion to extend the expert deadlines.40 No reason at all was given as to why the deadline should be extended for Dr. Borjas's report.41 Yet again, however, the court revised the schedule, "with even more liberal deadlines," but with the caveat that, "absent compelling and unforeseen circumstances, this third order granting an extension of time shall be the last."42 Plaintiffs were given until July 22, 2008 to tender the "complete report" of Dr. Borjas.43 The order stated that all discovery was to be completed by August 8, 2008.44

Extraordinarily, even though this court had thrice extended the deadline for Dr. Borjas' report, providing plaintiffs with more than three extra months beyond the due date set in the original scheduling order, the parties provided the following notice, once more approximately a week after Dr. Borjas' report was due:

Though "not at all impressed with the reasons proffered by plaintiffs' expert for the delay," this court recognized that plaintiffs' failure had deprived defendants' damages expert of the time that the supposedly "Final Scheduling Order" had provided for his analysis of Dr. Borjas's report.45 Consequently, and in light of the joint nature of the motion to revise the schedule, the court granted yet another extension.46 That order extended the deadline for completion of all discovery to August 29, 2008.47

As it turned out, not only were plaintiffs' explanations for the delay in turning over the bases for Dr. Borjas's report unimpressive, they were also false. Dr. Borjas never created a regression analysis for this case at all,48 so there were no technical problems associated with downloading it. Moreover, while some of the promised data underpinning the report were indeed turned over within the timeframe described in this fourth motion to extend, plaintiffs appear not to dispute that portions of the data were not turned over until September 16, 2008, more than two weeks after the deadline for completion of discovery.49

Almost immediately, on August 5, 2008, defendants filed a so-called "preliminary" motion to strike Dr. Borjas's report, for summary judgment on damages and proximate causation, and to stay discovery, on the basis that Dr. Borjas's report was fatally incomplete.50 In that motion, defendants explicitly "reserve[d] their rights to more fully brief" plaintiffs' asserted failure to prove damages and causation in subsequent Daubert and summary judgment motions "should it be necessary."51 When the motion was filed, more than three weeks remained in the discovery period52 defendants' damages expert's complete report had not yet been tendered,53 and neither Dr. Borjas nor defendants' damages expert had yet been deposed.54 Considering the motion decidedly premature, the court summarily denied it ten days after it was filed.55

On September 22, 2008, defendants filed three of the motions presently under consideration: (1) a motion to exclude the testimony of James M. Johnston, plaintiffs' immigration expert; (2) a motion to exclude the testimony of Dr. Borjas, plaintiffs' damages and proximate causation expert; and (3) a motion for summary judgment.56 The briefing regarding these motions concluded on October 27, 2008.57

On December 1, 2008, Pilgrim's Pride filed for bankruptcy protection under Chapter 11, in the Bankruptcy Court for the Northern District of Texas.58 While, technically, Pilgrim's Pride is not a party, the company has factually been at center stage in this action and, moreover, has paid the litigation fees associated with defending the two individual defendants from the outset.59 Therefore, not surprisingly, nearly a year passed during which this court saw neither hide nor hair of either party, save for occasional administrative filings related to counsel.

The court attempted to jump start the stagnant litigation on October 8, 2009, by setting the two outstanding motions to exclude for a hearing one month and ten days later.60 Counsel for both parties, however, left a telephone message with chambers on October 26, 2009,61 stating that they would be unable to attend, and, three days later, plaintiffs filed a motion to continue the evidentiary hearings.62 Defendants' counsel responded on the same day, suggesting the hearing be continued indefinitely, pending the determination of an as-yet-unfiled motion in the bankruptcy court to permit them to continue representation of defendants.63 Recognizing that, without an authorization order from the Bankruptcy Court, defendants' counsel could be forced to withdraw, this court granted a continuance of the Daubert hearing on November 2, 2009, directing counsel to notify the court regarding the progress of that motion.64

On December 7, 2009, defendants gave notice that the Bankruptcy Court had granted their motion.65 Yet, one week later, the parties filed a joint motion to continue the Daubert hearing "until after `Plaintiffs' Objection to Debtors' Amended Joint Plan of Reorganization under Chapter 11 ... filed by Pilgrim's Pride ...' [was] resolved."66 The motion alerted the court that, shortly after the date upon which the court continued the Daubert hearing and the date upon which the Bankruptcy Court authorized defendants' counsel to continue representation in the bankruptcy case, plaintiffs' counsel had filed objections to the plan filed in the Bankruptcy Court.67 Accordingly, the parties jointly requested that no hearing date be set until the dispute regarding Pilgrim's Pride's Reorganization Plan had been resolved.68

Before the parties notified the court about such a resolution, however, on February 3, 2010, plaintiffs filed a "Motion to Strike Defendants' Experts' Declarations and Deposition Transcripts and to Decide Defendants' Daubert Motions without a Hearing."69 Plaintiffs contended that defendants' suggestion that they would not introduce the live testimony of defendants' experts at the hearing on defendants' motion to exclude the testimony of plaintiffs' experts meant defendants were not entitled to use the declarations or deposition testimony of the experts they had retained in this action for any purpose.70 In addition to providing no citation even remotely supporting the relief sought, plaintiffs' motion was also, as a motion to strike expert testimony, nearly a year and a half tardy.71 The motion was denied on February 19, 2010, 2010 WL 4595716.72

On March 5, 2010, the parties filed a joint notice regarding the status of the action.73 That document alerted the court about the following occurrences in the Bankruptcy Court.74 On January 1, 2009, Pilgrim's Pride moved to extend the automatic stay in the bankruptcy action to include all pending litigation that would use its resources, including this case.75 Plaintiffs filed a response in opposition on February 3, 2009.76 On March 3, 2009, the bankruptcy court declined to extend the stay and instead permitted the litigation to be addressed through the adversary proceeding process in that court.77 Such a proceeding was, however, never initiated with respect to this action.78 Pilgrim's Pride and the related entities who were debtors-in-possession in the bankruptcy proceedings subsequently filed a Plan of Reorganization that was adopted by the Bankruptcy Court, but plaintiffs filed an objection to that plan on November 30, 2009.79 The plan was confirmed over plaintiffs' objections.80 As part of the company's discharge from bankruptcy, Pilgrim's Pride is excluded from liability in this case.81 However, the Bankruptcy Court issued an order on January 14, 2010, clarifying that suits against third-parties, like the individual employee defendants in this case, could nonetheless proceed.82 With few exceptions, the parties gave no notice regarding the occurrence or details of most of these proceedings and determinations until March 5, 2010.83

After review of these materials, the court once again set defendants' motions to exclude for a hearing, this time on April 27, 2010.84 Over the course of more than eight hours, the court took testimony from both of plaintiffs' experts and heard extensive argument regarding whether those experts, and specifically the reports they have tendered pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), satisfy the requirements of Federal Rule of Evidence 702, as elucidated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny.

B. Professor Borjas's 26(a)(2)(B) Report and Proposed Testimony

Plaintiffs have proffered Dr. George J. Borjas for the purposes of testifying "that wages paid by Pilgrim's Pride to the Plaintiffs were depressed as a result of Defendant's alleged practice of employing legally ineligible workers."85 See Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1287 (11th Cir.2006) (reiterating the elemental requirement that plaintiffs must show that "the injury pled was proximately caused by the claimed RICO violations") (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 458-59, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006)). Pursuant to the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) and the orders of this court, Dr. Borjas created a report detailing his methodology, the data upon which he relied, and the opinions he derived from the data.

The central premise of much of Dr. Borjas's academic work, and of his analysis in this case, is that, at least in the short run, "[o]ther things equal, an immigration-induced increase in the size of the workforce lowers the wage of competing workers."86 This assertion proceeds from foundational economic principles of supply and demand in a competitive market.87 Consistent with this theory, Dr. Borjas developed an econometric framework to "estimate[] the responsiveness of wages to immigration-induced supply shifts in a national labor market defined along the dimension of skills...."88 Though Dr. Borjas admits that no studies have yet done so, he asserts that "there are no conceptual reasons that prevent the theory and econometric methodology from being adapted to the current context."89

To that end, his report proposes to measure this responsiveness of wages to increases in the labor supply resulting from immigration (the "wage elasticity") by use of a regression analysis that will determine the curve-of-best-fit for the relationship of three variables:90 (1) the increase in the labor supply as a result of immigration to the area, determined by using the relative increase in the number of students in the Russellville School District as a proxy;91 (2) the real wage of hourly workers employed at the Russellville Pilgrim's Pride facility; and (3) the number of person-hours employed at the plant.92 The slope of this curve will describe the change in wage for every incremental increase in the local labor supply. To deal with the problem that such a measure "would simply reflect the market pressures ... in the entire labor market, and would not provide any information about how the Russellville plant's wages respond to a shift in Pilgrim's Pride's own polices towards employment of undocumented workers," he proposes to further demonstrate that the company has "wage discretion,"—that is, it has market power to pay a lesser wage than its competitors for the same pool of labor.93 With this demonstration of market power, his report indicates he can simply multiply the coefficient of wage-change for every increase in labor supply (determined by the regression) by the number of workers hired in violation of the predicate acts, and thereby determine proximately caused damages.94

II. LEGAL STANDARDS

A. Daubert Motion Standards

"`Rule 702 compels the district courts to perform the critical `gatekeeping' function concerning the admissibility of expert scientific [and technical] evidence.'" United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir.2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004)) (alteration in original). "This function inherently requires the trial court to conduct an exacting analysis of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702." Id. (internal quotation omitted).

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). At base, the analysis requires "the proponent of the testimony ... [to] show that: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which he reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact." Maiz v. Virani, 253 F.3d 641, 665 (11th Cir.2001). These requirements can be shown by demonstrating that "`(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.'" Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir.2010) (quoting Fed.R.Evid. 702).

"The inquiry ... is a flexible one" because, in any given case, "[m]any factors will bear on the inquiry, and ... [there is no] definitive checklist or test." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Factors that may be relevant include:

Hendrix ex rel. G.P., 609 F.3d at 119495 (internal quotation marks and alterations omitted).

B. Summary Judgment Standards

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court "view[s] the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion" and "all reasonable doubts about the facts [are] resolved in favor of the non-movant." See Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999) (internal quotations omitted).

Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; instead, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

III. DISCUSSION

A. Plaintiffs' Rule 56(f) Petition for Further Discovery

Lead counsel for plaintiffs, Howard Foster,96 executed an affidavit seeking further discovery contemporaneously with plaintiffs' response to defendants' motion for summary judgment.97 Oddly, other than two bare citations to the exhibit number of this document in their brief opposing summary judgment, plaintiffs did not expressly advert to what effectively amounts to a Rule 56(f) affidavit in any filing, nor did plaintiffs ever file a standalone motion seeking further discovery in conjunction with it.98 At the Daubert hearing, defendants argued plaintiffs had failed to timely move, under Rule 56(f), for further discovery, and plaintiffs did not dispute that assertion.99 Plaintiffs did, however, stringently argue that, to the extent doing so was necessary, Dr. Borjas would be able to "complete his report" and cure any deficiencies in it as proof of causation and damages if they were permitted further discovery.100 The court will address this assertion on the presumption that a Rule 56(f) petition was properly made. Cf. Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841, 844 (11th Cir.1989) ("We reaffirm that rule 56(f) is `infused with a spirit of liberality,' [though] we cannot go so far as to require courts to make such a motion on behalf of a party that deliberately chooses not to do so itself.") (quoting Wallace v. Brownell Pontiac-GMC Co., Inc., 703 F.2d 525, 527 (11th Cir.1983)) (emphasis supplied). Further, since the additional discovery sought would be directed exclusively to permitting Dr. Borjas to amend his report, it must be dealt with before the court will examine whether Dr. Borjas's proposed testimony is sufficiently reliable evidence on these two elements of plaintiffs' prima facie case.

Plaintiffs identify two related categories of data about the employment levels at the Russellville facility that would allegedly enable Dr. Borjas to complete his report. First, they seek "to resolve the dispute and/or verify" data about the total number of employees at the facility, including temporary workers, calculated in terms of man-hours, for the previous decade, as well as the wages paid all unskilled workers for the same period.101 As a closely related corollary, they seek information about any capital improvements at the plant, so that Dr. Borjas may properly account for the effects of process automation on employment levels.102

To demonstrate an entitlement to further discovery under Rule 56(f), a party must "set[] forth with particularity the facts the moving party expects to discover and how those facts would create a genuine issue of material fact precluding summary judgment." Harbert International, Inc. v. James, 157 F.3d 1271, 1280 (11th Cir.1998). Plaintiffs' affidavit provides sufficient detail about the facts they seek to discover and, albeit inferentially, how those facts would create a genuine issue.103 Particularly where the parties have already been afforded significant discovery, however, such a showing is not, by itself, sufficient. E.g., First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 270, 298-99, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) (approving of denial of Rule 56(f) motion where failure to produce necessary evidence, "despite considerable discovery, demonstrated that additional discovery would be merely a fishing expedition and would unduly harass" the other party). The Eleventh Circuit has made abundantly clear that a party will not be entitled to further discovery under Rule 56(f) where the absence of evidence crucial to its case is the result of that party's lack of diligently pursuing that evidence through the discovery it was permitted. E.g., Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1316 (11th Cir.1990) (affirming denial of 56(f) petition where "[t]he parties [had] agreed on a discovery schedule which the trial court extended on several occasions"). "Because the burden on a party resisting summary judgment is not a heavy one, one must conclusively justify his entitlement to the shelter of rule 56(f) by presenting specific facts explaining the inability to make a substantive response as required by rule 56(e)...." S.E. C. v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir. 1980) (emphasis supplied) (quotation marks and internal citations omitted).104 This is "particularly [so] where, as here, ample time and opportunities for discovery have already lapsed." Id. Accordingly, it is necessary not only for a party moving for further discovery to show precisely what it expects to discover if furnished additional time, but why it should be furnished additional time at all. See 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2741, at 405-07 & n. 15 (2d ed. 1998).

Plaintiffs advance three explanations for their failure to obtain sufficient information to enable Dr. Borjas to accurately determine and account for changes in employment levels at Pilgrim's Pride. First, they contend that they did not become aware that capital improvements may have affected employment levels at the facility until too late in the discovery period.105 Second, they argue that, notwithstanding the enormous amounts of employment data disclosed, the true level of employment at Pilgrim's Pride during the relevant period remains "disputed" and "uncertain[]" because of "defendants' inaccurate discovery responses" and purported failure to disclose the number of temporary workers.106 Third, they protest that "the very limited discovery permitted ... simply did not permit Plaintiffs to depose the Plant personnel necessary to determine the true level of employment there."107

Plaintiffs' averment in counsel's affidavit that they did not know about "the possibility that automation decreased the need for hourly employees until the end of the discovery period" is flatly contradicted by the expert whose testimony would be shored up if they were granted the further discovery they seek.108 Initially, it is difficult to believe, especially in light of plaintiffs' counsels' extensive experience with cases alleging wage depression theories identical to the one at issue here,109 that plaintiffs were unaware that their damages theory, which necessarily requires precise measurement of trends in employment levels, would need to account for automation. The potential impact of automation on employment levels in the short run has not only been extensively examined in economic literature since at least the Industrial Revolution, but also is so commonly understood that it has given rise to its own phrase: "labor-saving technology."110 Further, plaintiffs' assertion that it "makes no economic sense," and Dr. Borjas's contention that "it is hard to reconcile the reported decline in employment with the fact that there was an increase in the Russellville plant's output," are at best disingenuous when Dr. Borjas's own textbook addresses the precise point: "If the technological advances that are being introduced constantly into the labor market are good substitutes for unskilled workers... this type of technological change would lower the demand for unskilled labor." George Borjas, Labor Economics 306 (4th ed. 2008). Dr. Borjas also does not dispute that United States Census Bureau statistics showed employment per plant falling by 5 percent in the poultry industry as a whole between 2003 and 2006, while output per employee rose 17 percent and capital investment rose by 17.2 percent.111

More importantly, Dr. Borjas testified that he discovered discrepancies between the data he was given on the output of the Pilgrim's Pride plant and the number of employees "the minute [he] started playing with the data."112 He immediately "told counsel that there were things in the data that seemed contradictory, and [he] did ask specifically about the capital improvements... and ... told counsel that without resolution of th[o]se issues" he would be unable to perform the regression analysis he had been retained to conduct.113 At the Daubert hearing, Dr. Borjas reiterated this point: "And I remember asking counsel at the time, is there anything on the lines of a machine coming in that would explain this? And the answer provided to me at the time was no, but that answer, I think is incorrect."114 Plaintiffs never asked defendants for that information.115 Instead, plaintiffs' counsel told Dr. Borjas that "[h]e didn't know of any" capital improvements, and that there "wasn't any data in the context of the case."116 Dr. Borjas conveyed to counsel that, "without resolution of these issues," he would be unable to determine the critical element of wage elasticity:

Plaintiffs admittedly deposed at least two Human Resources professionals at the plant after Dr. Borjas requested information about capital improvements and their possible impact on total man-hours at the facility, and yet they never asked any questions on the point.118 Accordingly, this proffered explanation for plaintiffs' failure to obtain information necessary to permit Dr. Borjas to complete his analysis during the time they were afforded does no more than highlight that they failed to do so.

Plaintiffs' second explanation for their failure to obtain sufficient information regarding the number of man-hours—that defendants "sandbagged" them by providing inaccurate information119—also is unavailing and for similar reasons. Plaintiffs make much of Pilgrim's Pride's conceded overproduction of employment files for individuals employed on April 18, 2008. Initially, Pilgrim's Pride produced approximately 1,900 employee files. However, on June 6, 2008, defendants' response to the first question in plaintiffs' second set of interrogatories indicated that, on May 1, 2008, there were 1,344 employees at the facility.120 By June 6, 2008, the discrepancy was resolved when defendants acknowledged they had mistakenly sent the files of approximately 600 individuals who were not current employees on the relevant date.121 Plaintiffs provide no explanation whatsoever why a discovery discrepancy resolved well over a month and a half prior to issuance of Dr. Borjas's report would affect his ability to complete it. Further, the production discrepancy related to the analysis of plaintiffs' immigration expert, James M. Johnston, who examined the files for the purpose of opining about the probable legality of each individual employee.122 Professor Borjas expressly stated that he had never read Johnston's report and, even though he cites two numbers from the report, there is no indication any delay in receiving those numbers impacted his analysis.123

Plaintiffs also advance the argument that they are entitled to more discovery because their failure to obtain accurate employment data for Dr. Borjas is attributable to defendants' failure to provide them information regarding temporary contract workers at Pilgrim's Pride.124 Yet, plaintiffs knew that Pilgrim's Pride had used temporary employee services at least as early as defendants' supplemented responses to plaintiffs' first set of interrogatories, which plaintiffs received on June 17, 2008, more than a month before Dr. Borjas rendered his report, and more than two months prior to the close of discovery.125 Still, they apparently chose thereafter to neither refine their interrogatories to determine the numbers of such workers, nor to subpoena the records of the several temporary employment service providers defendant Thomas identified as having provided contract labor to Pilgrim's Pride.126 Rather, they simply relied on conflicting responses from witnesses to assert that the number of such workers is "disputed," and that they should, therefore, be entitled to further discovery. Plaintiffs' apparent contention that defendants should have turned over the information without their requesting it lacks merit entirely.127 Certainly plaintiffs cannot contend that their failure to properly pursue evidence that they knew existed two months prior to the close of discovery "conclusively justif[ies their] entitlement to the shelter of rule 56(f) by ... specific facts explaining the[ir] inability to make a substantive response...." Spence & Green Chem. Co., 612 F.2d at 901.

Plaintiffs also assert that their failure to obtain correct employment level data was the result of inconsistencies between the numbers of employees stated in defendants' interrogatory responses and in other documents plaintiffs have uncovered.128 Specifically, plaintiffs identify two sources of information that appear to conflict with defendants' responses. The first is a generally addressed memorandum from former Division Manager Don Wisdom discussing the plant's water needs that indicated there were 2,100 employees at the facility in 2005 (which included employees at a nearby hatchery and feed mill that are not implicated by the claims in this action),129 portions of which plaintiffs discovered on a now-defunct website.130 The second is a 2004 Tennessee Valley Authority report indicating that the work force would increase to 1,900 at some unspecified point in the future.131 Yet again, however, the problem to which plaintiffs point merely highlights their failure to take advantage of the discovery afforded them.132 Even assuming these two single-page, outside sources are sufficiently reliable to create a reasonable dispute with defendants' sworn answers to interrogatories, plaintiffs provide no explanation as to why they did not bring the asserted discrepancies to the court's attention when discovered, rather than providing an incomplete report months later and then pointing to the different numbers as an excuse.133 A party who reasonably believes its counter-party is prevaricating or falsifying discovery responses should "promptly [seek] the district court's assistance," and failure to do so should result in "den[ial of a] Rule 56(f) motion ... on the ground that [the moving party] ha[s] not been diligent." Exigent Technology, Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1310 (Fed.Cir. 2006) (applying Eleventh Circuit law). Indeed, the far more likely explanation for plaintiffs' ascription of fault to the numbers defendants provided in their discovery responses is that, when Dr. Borjas applied his theory to those numbers, his theory, as he admitted, "simply didn't hold up in this case."134 Neither the failure of discovery to prove what a party hoped it would, nor its possible inconsistency with one piece of online hearsay and one speculative third-party public record, are even marginally convincing justifications under Rule 56(f).

Finally, plaintiffs make much of the fact that discovery was "limited in this case," implying that, to the extent they failed to obtain sufficient information to permit Dr. Borjas to complete his analysis, this court, as opposed to their attorney, is to blame.135 Yet, with a single exception, the amount of discovery permitted plaintiffs to establish their prima facie case was precisely what plaintiffs asked for in the parties' Rule 26(f) report.136 Still, plaintiffs rail that the five depositions this court allowed in its initial scheduling order were insufficient to permit them to discover the information they needed. Yet plaintiffs never, as counsel admitted at the Daubert hearing, moved for leave to conduct additional depositions and, indeed, despite counsel's suggestion to the contrary, never moved for more discovery at all.137 Instead, they waged desultory and pointless battles to modify the protective order to which they had agreed.138 Plaintiffs had self-evidently convincing reasons to permit them to conduct more depositions than allowed in the revised scheduling order: the discovery of new information (regarding possible capital improvements and the use of contract labor) and conflicting data regarding employment levels. They simply chose not to ask.139

It is far too late in the day for plaintiffs' plea for further discovery. Even had the parties not absented themselves for a year and a half of wrangling in a Texas Bankruptcy Court, it would still have been too late. Plaintiffs were afforded every opportunity to gain the information necessary to prove their case. The court extended discovery deadlines four times,140 twice extending the deadline for Dr. Borjas's report after it was due,141 and ultimately providing "even more liberal deadlines" than plaintiffs requested.142 Not once did plaintiffs alert this court to any of the problems they now contend should entitle them to further discovery, nor did they ever seek aid in securing the information Dr. Borjas says was necessary for completion of his report.143

Accordingly, plaintiffs' Rule 56(f) petition is due to be denied. Plaintiffs are not entitled to yet another opportunity to tender a Rule 26(a)(2)(B) expert report on damages and causation sufficient to preclude summary judgment. The federal rules do not reward the dilatory, and plaintiffs' lack of diligence militates in favor of denial.144 Dr. Borjas's report must stand, if it stands at all, on its own two legs.

B. Defendants' Motion to Exclude the Testimony of Dr. George Borjas

1. Dr. Borjas's report is fatally incomplete

Without more, Dr. Borjas's report fails to present any opinion that would help determine a fact in issue. To prove their RICO claim in this action, plaintiffs must prove damages "by reason of" the predicate violations. 18 U.S.C. § 1964(c). The object of Dr. Borjas's proposed expert testimony is to satisfy these elements by causally linking a diminution in wages in a relevant labor market to defendants' alleged hiring of unauthorized workers.

Proper performance of a court's gatekeeping role under Federal Rule of Evidence 702 requires not only that a court determine that a qualified expert has reliably applied reliable methods to sufficient data to permit him to provide an opinion, but also that the opinion the witness purports to provide be actually helpful to determination of a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("Rule 702's `helpfulness' standard requires a valid ... connection to the pertinent inquiry as a precondition to admissibility."); United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (en banc) ("The burden of establishing ... helpfulness rests on the proponent of the expert opinion."); Fed.R.Evid. 702 (requiring that expert testimony "assist the trier of fact"). Expert testimony "does not assist the trier of fact unless the testimony has a justified... relationship to the pertinent facts." McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir.2004) (citing Daubert, 509 U.S. at 591, 113 S.Ct. 2786). This requirement stems from basic principles of relevancy: "expert testimony must be `relevant to the task at hand[:] ... it [must] logically advance[] a material aspect' of the case." Id. at 1298-99 (quoting Daubert, 509 U.S. at 591, 113 S.Ct. 2786). Courts have fleshed out the concept to clarify that, simply because an expert's conclusion may superficially appear relevant to and helpful in the determination of facts at issue, if it is too far divorced from the underlying data, it may ultimately prove unhelpful.

Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir.2010); see also, e.g., McDowell, 392 F.3d at 1301-02 ("[A]n expert opinion is inadmissible when the only connection between the conclusion and the existing data is the expert's own assertions...."). If an expert's facially relevant conclusion relates to the data it purports to rely upon only by his own ipse dixit, it ultimately is simply an argument, "offer[ing] nothing more than what lawyers for the parties can argue in closing arguments" and, consequently, fails to meet Rule 702's helpfulness requirement. Frazier, 387 F.3d at 1262.

As plaintiffs note in their response to the motion to exclude Dr. Borjas's testimony,

Dr. Borjas's analysis, however, does not establish the third element. Indeed, in his report, Dr. Borjas explicitly admits that "the data provided to me indicate a decline in employment at the Russellville plant during the at-issue period—which would seem to contradict" his theory.146 Only by concluding that the information he was provided on employment levels was false and (admittedly erroneously) that no automation occurred,147 and then substituting the facility's output level as a proxy for its employment level, is Dr. Borjas able to draw any conclusion in his report whatsoever. In his deposition testimony, he forthrightly admitted as much while examining the analysis of his work in this case done by defendants' expert, and Dr. Borjas's former colleague, Dr. Finis Welch:

Nonetheless, plaintiffs contend that Dr. Borjas has provided a viable opinion.149 They point to paragraphs 45 and 46 of his report in support of that claim. Paragraph 45 opines that "the preliminary evidence indicates that unauthorized alien worker-induced supply shifts in Russellville did indeed lead to lower wages for workers employed at the Russellville plant."150 Paragraph 46 merely indicates that Dr. Borjas "anticipate[s] being able to" complete his analysis "following additional discovery that addresses the above mentioned shortcomings in the data."151

Dr. Borjas's preliminary conclusion regarding wage depression is plainly ipse dixit. In the same paragraph he admits that "it has not yet been possible to estimate the statistical model summarized" in the report. As detailed above, the only data he has regarding one of the three central premises of his theory—that employment levels at the plant increased152— flatly contradict his hypothesis. Hence, any conclusion that the hypothesis holds true could only derive from an analytical leap that disregards either the data in front of him, or the conditions antecedent he sets forth. Indeed, the sentence that follows the "opinion" to which plaintiffs point shows that Dr. Borjas was only able to reach even this preliminary conclusion by substituting product output for employment level.153 Professor Borjas admits that he has no reason to believe that substitution makes sense:

"Daubert requires that trial courts act as `gatekeepers' to ensure that speculative, unreliable expert testimony does not reach the jury. The trial court must `make certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir.2010) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). Dr. Borjas admitted that, absent inputs he was unable to consider, his analysis "would not be something that one would present."155 Further, his expertise is econometrics and applied microeconomics.156 His analysis was to include an econometric regression to allow him to calculate the degree to which plaintiffs' wages were depressed by Pilgrim's Pride's alleged hiring of illegal immigrants.157 That regression analysis, however, was never conducted. Bluntly, Dr. Borjas did not bring his expertise to bear on the relevant factual issues.

Shorn of its purely speculative conclusion, Dr. Borjas's report contains no relevant opinions at all. Rather, it is merely a recitation of a methodology and facts to which that methodology purportedly could be applied. "[I]n acting as a gatekeeper, the court is responsible for `keep[ing] unreliable and irrelevant information from the jury,' because of its `inability to assist in factual determinations, its potential to create confusion, and its lack of probative value.'" Bowers v. Norfolk Southern Corp., 537 F.Supp.2d 1343, 1349-52 (M.D.Ga.2007) (quoting Allison v. McGhan Medical Corp., 184 F.3d 1300, 1311-12 (11th Cir.1999)). In its present form, Dr. Borjas analysis fails on all three counts.

Rather than addressing the obvious shortcomings of the report, or providing any cogent argument as to why they should not result in the exclusion of Dr. Borjas's testimony from consideration in light of defendants' pending motion for summary judgment, plaintiffs tilt at windmills. Specifically, they first contend that the law does not require them to prove any amount of damages as part of their prima facie case, provided they have shown "the fact of damage."158 While this statement of the law is highly questionable, see Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 466, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (stating that it is "plaintiff's responsibility to prove that the amount of damages he seeks is fairly attributable to the defendant"), this court need not determine whether it is correct, because Dr. Borjas admitted he had not even established that much. When asked whether he had been "able to form an opinion as to whether wages ... were decreasing or increasing or staying the same with the influx of immigrants into the Russellville facility," Dr. Borjas candidly admitted he "was unable to distinguish among these various possibilities."159 He testified that he "ended the report ... basically by saying, if the output data was actually a correct measurement of employment, in other words proportional to employment, and I had no information on capital investment one way or the other ... and counsel said there was nothing to indicate they had," then he could conclude causation.160 However, "[t]hat is a big assumption" that "could be wrong,"161 and, plaintiffs are ultimately forced to admit, albeit circuitously, that it is.162

Moreover, the preliminary conclusion itself only indicates that "unauthorized worker-induced supply shifts in Russellville did indeed lead to lower wages ... at the Russellville plant."163 That opinion does not relate at all to any unauthorized workers hired by defendants, much less any such hiring that would constitute a RICO predicate act. It refers only to a possible wage impact of an influx of immigrants into the area. Such a diminution, even if the speculation it occurred is credited, would not be "damages" to "business or property," since it would be wholly unrelated to "`schemes prohibited by the RICO predicate statutes'" linked to the "relationship ... between plaintiff workers and their employer...." Williams v. Mohawk, 465 F.3d 1277, 1286-87 (11th Cir. 2006) (quoting Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168 n. 4 (9th Cir. 2002)). Rather, the opinion refers only to the generalized wage-depressive effect, at least in narrowly defined skill groups, within an aggregated labor market that labor-supply shocks may have, which has been the focus of much of Dr. Borja's work. E.g., George J. Borjas, The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market, 118 Q.J. Econ. 1335, 1335-40, 1369-70 (2003); Abdurrahman Aydemir & George J. Borjas, Cross-Country Variation in the Impact of International Migration, 5 J. Eur. Econ. Ass'n. 663, 663-666 (2007) (finding, in a study defining the relevant aggregated labor market as three countries, a "numerically sizable and statistically significant inverse relation between labor supply shifts and wages in all three countries").

Second, plaintiffs make a half-hearted attempt to describe this court's ruling on defendants' "Preliminary Motion" to strike Dr. Borjas's report and for summary judgment as "the law of the case."164 Plaintiffs are mistaken; law-of-the-case doctrine is manifestly inapplicable. See Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007) (denial of summary judgment is an interlocutory, not final, order); Gregg v. United States Industries, Inc., 715 F.2d 1522, 1528 (11th Cir.1983) ("Ordinarily law of the case applies only where there has been a final judgment and not to interlocutory rulings."); see; see also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 12 & n. 14, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ("[E]very order short of a final decree is subject to reopening at the discretion of the district judge.") (1983); Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912) (Holmes, J.) ("`[L]aw of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power."); Curran v. Kwon, 153 F.3d 481, 486-88 & n. 11 (7th Cir.1998) ("[T]he denial of summary judgment... was not the law of the case and did not bind the court....").

As noted above, defendants' motion was expressly denominated "preliminary" in nature;165 it was filed more than three weeks prior to both Dr. Borjas's deposition and the close of discovery;166 and, most importantly, the motion was summarily denied in a three-sentence order.167 It should have been blatantly obvious to even the most novice litigator that this order was not intended to foreclose similar arguments when ripely made without wasting judicial resources to hand-hold counsel through the reasoning. Moreover, even if the doctrine were applicable—and it is not—the significant further factual development that occurred after the ruling on defendants' "preliminary" motion would clearly justify reconsideration. See, e.g., 18B Wright, Miller, & Cooper, Federal Practice and Procedure § 4478.1, at 695 ("A ruling made early in the proceedings may rest on poorly developed facts that have been better developed by continuing proceedings. In these circumstances, the forward progress of the case encourages reconsideration.").

Accordingly, Dr. Borjas's report provides no viable opinion regarding facts in issue. As such, plaintiffs have failed to carry their burden of demonstrating that his testimony would prove "helpful," and his testimony is, accordingly, due to be excluded and his report stricken.

2. Even were the conclusions supported, Dr. Borjas methodology is insufficiently reliable as applied to the facts of this case.

The parties do not dispute that Dr. Borjas is eminently qualified. His work on the subject of the impacts of immigration on native workers has had a profound impact on the field of study. Yet, "at all times, the district court must still determine the reliability of the opinion, not merely the qualifications of the expert who offers it." Kilpatrick, 613 F.3d at 1336. "The burden of establishing ... reliability... rests on the proponent of the expert opinion": in this case, plaintiffs. Frazier, 387 F.3d at 1260; see also Allison, 184 F.3d at 1306 (the "burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert"). Three portions of the analysis Dr. Borjas proposes are deeply problematic and, at least together, render his opinion unreliable. Accordingly, because plaintiffs have failed to satisfy their burden to prove reliability, even had Dr. Borjas completed the analysis he describes in his report, his testimony would still be due to be excluded.

a. Dr. Borjas's instrumental variable proxy is unreliable

As outlined above, one of the three central conditions that should be true in order for Dr. Borjas's theory to produce a plausible conclusion that plaintiffs' wages were depressed by defendants' illegal hiring is that there be an "immigration-induced increase in the number of potential workers in the local area servicing the Russellville plant...."168 Dr. Borjas uses "the proxy given by the number of Hispanic students enrolled in the Russellville School District, available from the National Center of Education Statistics," to proxy such an increase.169 With Hispanic school enrollment as the instrumental variable or "supply shifter" (the crucial moving part in his analysis),170 Dr. Borjas's theory posits that "[a]n increase in Hispanic enrollment should indicate an increase in immigration—and should lead to lower wages and greater employment at the Russellville plant."171 His methodology examines the correlation between increases in labor supply and decreases in wages to determine how much (and in what direction) wages change for each increment of increase in labor supply.172 Once the responsiveness of wages (wage elasticity) is determined, then Dr. Borjas posits that he can simply take the number of workers illegally employed at the plant, and tally the total damages attributable to those illegal hires based upon that responsiveness.173 Hence, for example, if wages fell by a dollar for every hundred new workers in an area, then every individual hire that constituted a RICO predicate violation would result in a penny of damages.

Dr. Borjas admits that use of ethnicbreakdown school enrollment data in a study of this variety would be entirely novel.174 In support of this particular use in conjunction with wage elasticity analysis, both Dr. Borjas and plaintiffs argue only that the use of school data is used in economic analysis to proxy for "all kinds of other variables" and, therefore, it cannot undercut the reliability of the analysis.175 Such a general proposition, however, falls far short of demonstrating its reliability in the present context. See Elcock v. Kmart Corp., 233 F.3d 734, 748 (3d Cir.2000) (rejecting the "novel synthesis of ... two methodologies," even where "[e]ach approach, taken in isolation, may very well contain sufficient analytical rigor to be deemed reliable," because it would permit the expert simply to "offer a subjective judgment ... in the guise of a reliable expert opinion"); see also Rider v. Sandoz Pharmaceuticals Corp., 295 F.3d 1194, 1202 (11th Cir.2002) ("[T]he courtroom is not the place for scientific guesswork, even of the most inspired sort. Law lags science; it does not lead it.") (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996)).

Dr. Borjas candidly admitted he had not done any test to determine whether the use of Hispanic student enrollment proxy as the instrumental variable for a laborsupply shift is valid, and that, if it is not, "[t]he whole method would fail."176 This is so because, as his report notes, "[i]n a regression analysis of this type it is crucial to use a valid instrument to identify the wage elasticity."177 Yet Dr. Borjas readily conceded that he does not know whether those two statistics—the number of workers who are new to the area and the number of children of Hispanic origin—are in anyway correlated.178 The method he proposes to test the supposition that they are is wholly circular. He posits that if the number of workers employed at Pilgrim's Pride and the number of Hispanic students enrolled are positively correlated, i.e. both rise simultaneously, and the wage level at Pilgrim's Pride and the number of Hispanic students enrolled are negatively correlated, i.e. wages decrease while the number of students increases, then his variable would be valid. In other words, his novel use of enrollment data as a proxy variable is valid if the equation into which it is input confirms the other two central limbs of his hypothesis—that is, the variable will be valid only if it proves plaintiffs' theory of damages. However, certainly it is highly plausible that the wages and employment level at a single local firm could change simultaneously with the ethnic makeup of an area school system without any causal sinew linking those movements.179 Dr. Borjas fails entirely to explain how any correlation between Hispanic school children enrolled in one of several area schools—children who may or may not be children in a large family, children of low-skill workers,180 or even children of workers at Pilgrim's Pride—and the employment level and wage at Pilgrim's Pride would necessarily indicate a causal relationship between local labor-supply shifts and the wages of low-skilled workers, rather than a multitude of other factors that could also influence wages (such as changes in economic climate, demand for labor, changes in the local hiring environment, or strategic corporate decisions). Dr. Borjas admitted that he would need "to hold everything else constant, and [ensure] there is nothing else that is creating a correlation between Hispanic's [sic] enrollment in the schools and the wages in the Russellville plant," but his report only purports to describe the correlation, without controlling for any of these other factors, and dub that correlation causal.181 Cf. Abdurrahman Aydemir & George J. Borjas, Attenuation Bias in Measuring the Wage Impact of Immigration 1-5, 42-44 (Nat'l Bureau of Econ. Research, Working Paper No. 16229, July 2010) ("Measurement error, therefore, has been an important—and previously ignored— contaminant of the empirical results reported in this literature."). This is particularly problematic when the statistics show that the absolute number of students enrolled changed by only three students over the period, making the correlation of that data to a "supply shock" highly ambiguous at best.182

Given the independent factors that might influence the ethnic makeup of a school district and wages/employment levels at Pilgrim's Pride, any interrelationship between trends in those statistics is highly likely to be spurious and yet, provided they confirm plaintiffs' damages theory, Dr. Borjas, a Harvard economist, would tell a jury that they are causally related. "[E]xpert testimony may be assigned talismanic significance in the eyes of lay jurors, and, therefore, the ... court[ ] must take care to weigh the value of such evidence against its potential to mislead or confuse." Frazier, 387 F.3d at 1263. Especially in light of the political and racial implications of a case of this variety, this court is not prepared to admit as reliable this novel use of Hispanic student enrollment as a proxy for an influx of immigration.

b. Dr. Borjas's market power analysis is unreliable

In yet another novel adaptation of his wage depression analysis, Dr. Borjas attempts to separate out the generalized wage-depressive effect of an immigrationinduced labor-supply shock, which would "depress the wages for competing workers in all firms," by seeking to establish that Pilgrim's Pride "has some discretion over the wage it pays its workers."183 Dr. Borjas admits that, without proof that Pilgrim's Pride possesses a species of market power that permits it to pay less than the going wage in the area, "trends in the Russellville plant's wages would simply reflect the market pressures resulting from the additional number of workers in the entire labor market, and would not provide any information about how the Russellville plant's wages respond to a shift in Pilgrim's Pride's own polices towards employment of undocumented workers."184 In other words, to provide any evidence of wage depression causally related to any actions at all taken by defendants, he must determine that there exists "some kind of monopsonistic market power on the part of Pilgrim's Pride."185

To make this central determination, however, Dr. Borjas simply compared the starting wages of workers at Pilgrim's Pride against four other firms in the area and determined that Pilgrim's Pride paid a lower wage.186 He admits that "all [he] can gather from this information" is that Pilgrim's Pride "pays less than these four employers in Franklin County."187 Nevertheless, he opines that, "[t]he available data, though limited ... seem[ ] consistent with the hypothesis that Pilgrim's Pride has some degree of wage discretion."188

Yet, in his deposition, Dr. Borjas testified that there are a "whole bunch of factors" that might influence wage differences, but concedes he does not have the data to exclude those other factors.189 Indeed, even though the report itself states that one employer's "relatively higher wages" (which were, on average, $1.88 per hour higher than the mean of the five sets of wages he examined)190 were part of a deliberate policy by that employer to "attract a particular kind of worker," Dr. Borjas included this wage in his data tabulation apparently without accounting for this "potential limitation" at all.191

This is patently insufficient to reliably indicate market power over wages and "fails to meet the criteria of professional soundness and validity that are at the core of Daubert's reliability requirement." Bailey v. Allgas, Inc., 148 F.Supp.2d 1222, 1236 (N.D.Ala.2000) (excluding economic expert's market power analysis because he failed to provide any sound economic basis for his definition of the relevant market, failed to rely upon data sufficient to support his opinion, and failed to define the market share controlled by the defendant), affd, 284 F.3d 1237 (11th Cir.2002). Dr. Borjas's own academic writing has emphasized the existence of inter-industry wage differentials within the manufacturing sector, and posits multiple reasons why these differentials exist. See George J. Borjas, Labor Economics, supra, at 478-80. Dr. Borjas admits he did not control for these.193 An expert's failure to address alternative explanations for the opinions he asserts in the ways standard in his field of expertise "violates a primary purpose of Daubert: to ensure the expert `employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Guinn v. AstraZeneca Pharmaceuticals LP, 602 F.3d 1245, 1255 (11th Cir.2010) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

Further, figures compiled by the United States Department of Labor's National Bureau of Labor Statistics indicate that the average weekly income of a worker in a poultry processing facility is less than half that of the average worker in the manufacturing sector as a whole.194 The four comparator firms Dr. Borjas used to conclude Pilgrim's Pride had wage discretion were three manufacturing firms and a construction firm.195 Dr. Borjas is undoubtedly correct that the national statistics are unadjusted for regional differences.196 Yet he fails entirely to explain why he did not even attempt to account at all for industry-wide competitive pressures or the wage differentials that "are probably" present.197 Further, among the only two studies of the firm-specific wage impacts of immigration (neither of which are peer-reviewed and both of which used much, much larger data sets), the most recent indicates that inter-industry differences in labor supply elasticity can vastly change, and even eliminate, any wage differentials attributable to employment of undocumented workers. Julie L. Hotckhiss & Myriam Quispe-Agnoli, Employer Monopsony Power in the Labor Market for Undocumented Workers 27-28 (Fed. Reserve Bank of Atl., Working Paper No. 2009-14c, Dec. 2009).198 Dr. Borjas's opinion that Pilgrim's Pride exercised monopsonistic market power over wages is all the more suspect in view of the fact that, by his own figures, the wage trends at Pilgrim's Pride mirror almost precisely the wage trends averaged across the four firms he examined—with Pilgrim's Pride's hourly wages increasing, on average, 3.2% annually, and wages at the four firms he examined increasing only, on average, 3.3% annually.199

On several occasions, the Eleventh Circuit addressed the thorough analysis required of experts who seek to demonstrate that an entity possesses market power sufficient to permit it to control the prices of its products independent of market forces. See, e.g., Gulfstream Park Racing Ass'n, Inc. v. Tampa Bay Downs, Inc., 479 F.3d 1310, 1313 (11th Cir.2007) (upholding rejection of "expert testimony" opining that an entity had market power that "was conclusory, based upon insufficient economic analysis, and incomplete in its definition of the relevant market"); Bailey, 284 F.3d at 1247-56 (requiring, among other things, careful definition of the "geographic market" or the "area of effective competition ... in which the [entity] operates"; determination of "percentage share of that market"; and a demonstration of independent ability to sustain "supracompetitive prices"); Levine v. Central Florida Medical Affiliates, Inc., 72 F.3d 1538, 1553 (11th Cir.1996) (rejecting expert testimony purporting to demonstrate market power where, as here, the expert failed to account for the ability of individuals to change their affiliation with the relevant entity). Plaintiffs' argument fails entirely to convince the court that Dr. Borjas's "market power" assertion should not be subject to a similarly careful analysis of its reliability.200

c. Dr. Borjas fails to adequately account for possible alternative causes

Contrary to plaintiffs' assertion, Dr. Borjas's theory regarding the wage-impacts of immigration on native workers, and the results he has derived from its application, even when examining a national labor market, are not "universally accepted," as Dr. Borjas's own academic work itself recognizes, and, as even a cursory review of the academic literature can attest. E.g., Aydemir & Borjas, Attenuation Bias in Measuring the Wage Impact of Immigration, supra, at 3 ("A number of papers have replicated the national-level approach, with mixed results."); Gianmarco I.P. Ottaviano & Giovanni Peri, Rethinking the Effects of Immigration on Wages 1-5 (Nat'l Bureau of Econ. Research, Working Paper No. 12497, Aug. 2006) (finding revision of Dr. Borjas's methodology necessary, and producing significantly different results, because, in its present form, the approach only describes the "partial" effect of immigration on wages (since it omits all cross-interactions with other types of workers and flows of labor and capital) and, as such, is "uninformative on the overall effect of immigrants on wages"); David Card, Is the New Immigration migration Really So Bad? passim (Nat'l Bureau of Econ. Research, Working Paper No. 12497, Aug. 2005) (contending the influence of numerous factors, including immigrant assimilation, capital and labor flows, changes in demand for low-skill labor, and imperfect substitutability, make it "hard to argue that the evidence [from analysis using Dr. Borjas's methodology] points to a negative impact of immigration unless one starts from that position a priori"). The methodology is entirely without precedent at the level of a single firm in a small rural town.

Indeed, Dr. Borjas has, for more than a decade, been among the most stalwart critics of studies of the impacts of immigration on native wages done at geographic levels smaller than whole nations. He has stated that, because studies done even at the regional level fail to take into account the responsive flows of both capital and labor, as well as immigrants' self-selection of certain areas and certain industries, they are "completely uninformative" and "do not measure the impact of immigration on the native labor market." George Borjas, Heaven's Door 73-82 (1997). Indeed, the very work upon which he draws as the basis for his methodology in this case201 suggests that even immigrant self-selection alone can lead to "spurious ... correlation[s] between immigration and wages." Borjas, The Labor Demand Curve Is Downward Sloping, supra, at 1338. Given the easy mobility of both capital and workers between geographic areas within the United States, he writes in that paper that, because of various "factor flows," "in the end, immigration affect[s] every city, not just the ones actually receiving immigrants." Id. "[T]he local labor market can adjust in far too many ways to provide a reasonable analogue to the `closed market' economy that underlies the textbook supply-and-demand framework." Id. at 1339. "Because local labor markets adjust to immigration... the labor market impact of immigration may be measurable only at the national level." George J. Borjas, The Impact of Immigration on the Labor Market 7 (Conf. on Labor & Capital Flows in Eur., Jan. 2006);202 George J. Borjas, Increasing the Supply of Labor Through Immigration: Measuring the Impact on Native-born Workers 2 (Ctr. for Immigration Studies May 2004) (same); see also Silvia Helena Barcellos, The Dynamics of Immigration and Wages 3 (Rand Labor & Pop. Working Paper No. WR-755, Mar. 2010) ("Borjas (2003) argues that given internal migration, the correct way to define the labor market is in terms of the nation as a whole.").

The methodology Dr. Borjas has outlined for use in this case, however, purports to describe wage impacts at a much narrower level: a labor market defined as a single firm.203 He asserts that he "believe[s] the same basic methods and concepts used in the literature can be applied to estimate the impact of immigration at the firm level,"204 but fails to explain why he has chosen to jettison the skepticism about multiple frustrating factors, even at much larger levels of aggregation, that has driven much of his academic work.

No less an authority on the function of economic theory in legal contexts than Judge Frank Easterbrook of the Seventh Circuit has opined about "the difficulty of establishing that unlawful hiring of aliens caused a diminution in ... wages" in a case alleging the same theory as that asserted here:

Baker v. IBP, Inc., 357 F.3d 685, 692 (7th Cir.2004), cert. denied, 543 U.S. 956, 125 S.Ct. 412, 160 L.Ed.2d 318.

The Supreme Court has admonished courts to be vigilant in application of RICO's requirement that plaintiffs prove damage "by reason of the substantive RICO violations. "[U]nder civil RICO, the plaintiff is required to show that a RICO predicate offense `not only was a `but for' cause of his injury, but was the proximate cause as well.'" Hemi Group, LLC v. City of New York, ___ U.S. ___, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010) (quoting Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)). "[T]he focus is on the directness of the relationship between the conduct and the harm." Id. at 991. Plaintiffs must demonstrate "`a direct causal connection' between the predicate offense and the alleged harm." Id. (quoting Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 460-61, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006)). There must be "no independent factors that account for [the] injury...." Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 658, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008). Even if causing the "harm" asserted was the purpose of a criminal scheme, and acts in furtherance of that scheme have caused it, unless a designated "predicate act directly caused" that harm, then RICO's proximate causation requirement has not been met. Anza, 547 U.S. at 460, 126 S.Ct. 1991 (stating that a party may not "circumvent the proximate-cause requirement simply by claiming that the defendant's aim was to" cause the harm alleged); Beck v. Prupis, 529 U.S. 494, 500-01, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) ("[I]njury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO," even if "in furtherance of a conspiracy," "is not sufficient to give rise to a cause of action under § 1964(c)").

There are multiple causal concerns with Dr. Borjas's proposed analysis that would make it both unpersuasive and highly confusing on this critical causal element. Plaintiffs' asserted injury is directly caused by the decision, at some level in the Pilgrim's Pride hierarchy, to set wages below what they hypothetically might otherwise have been. Initially, incremental wage-setting decisions in a nationwide corporation do not follow the smooth curve that Dr. Borjas's measurements require and may emerge from multiple levels of the corporate hierarchy, many of which may have no relationship whatsoever to defendants or their alleged co-conspirators. Further, any wage-setting decision would undoubtedly be influenced by a variety of factors, many of which Dr. Borjas has written about extensively in cataloguing the difficulty labor economists have faced in working out the wage impacts of immigration. E.g., Borjas, The Labor Demand Curve Is Downward Sloping, supra, at 1370 (suggesting, as a necessary avenue for further research, "documenting the many adjustments that take place, by workers and firms, both inside and outside the labor market, as immigration alters economic opportunities in many sectors of the economy"). Dr. Borjas's analysis does not even purport to directly examine those decisions or factors other than illegal hiring that may have influenced them, and to what degree. As detailed above, Pilgrim's Pride itself was sliding toward (and ultimately into) bankruptcy during the relevant time frame, a factor that very probably impacted the wages it paid over the period examined. Moreover, it is undisputed that there were significant capital improvements at the company, which Dr. Borjas has written affect demand for labor, necessarily altering the supply-and-demand curve his model relies upon. See Borjas, Labor Economics, supra, at 304-09. Further, he does not dispute that the nationwide average wage in the poultry industry on the whole failed to keep pace with inflation during the relevant years— meaning that the real wage in the entire industry nationwide fell (and, hence, that industry-wide competitive pressure pushed al poultry-processing firms, Pilgrim's Pride included, to maintain lower labor costs), a point Dr. Borjas dismisses only by saying that Pilgrim's Pride "might have kept [pace] even less."205 A court must ensure an "expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir.2010). Dr. Borjas's failure to account for the very frustrating causal factors he has identified in his academic work is far too problematic.

Moreover, provided someone had hired them, Dr. Borjas's general theory itself would posit that, because all unauthorized workers increase the labor supply, wages at Pilgrim's Pride should fall if immigrants had moved into the area, even if Pilgrim's Pride had never hired a single one. See Borjas, The Labor Demand Curve Is Downward Sloping, supra, at 1368-70. Thus, the same decline in plaintiffs' real wages would occur even if the defendants had not committed the required predicate act—a fact that entirely eviscerates the assumption that the hiring (much less hiring with the requisite knowledge) was the "but for" cause of plaintiffs' depressed wages.

Any or all of these factors (and probably several more) could easily explain a diminution in wages; yet, if Dr. Borjas were to complete his analysis as outlined in his report, he would control for none of them and would, instead, attribute the entire diminution in wage to increased labor supply and then multiply that coefficient by the number of immigrants allegedly hired in violation of the INA. It is, of course, decidedly possible that one factor in any diminution may have been a substantive RICO violation, but Dr. Borjas's analysis does not even purport to show, and plaintiffs have pointed this court to no other evidence indicating, what portion of the wage-setting decision is directly attributable to other decisions to hire or harbor unauthorized aliens. In short, the showing plaintiffs seek to make could only demonstrate a correlation between real wages at the Russellville plant and the ethnic makeup of the local school district—nothing more and nothing less. Any indication of the causal link that RICO requires is simply too attenuated. "A link that is `too remote,' `purely contingent,' or `indirec[t]' is insufficient." Hemi Group, LLC, ___ U.S. ___, 130 S.Ct. at 989 (quoting Holmes, 503 U.S. at 271, 274, 112 S.Ct. 1311) (alterations in original). Certainly an expert is not required to "rule out all possible alternative causes" in order for his testimony regarding causation to be reliable. Guinn, 602 F.3d at 1253. However, particularly in light of the Supreme Court's pronouncements regarding RICO's causation element, an expert whose testimony is offered to establish that element "must provide a reasonable explanation as to why he ... concluded that any alternative cause suggested ... was not the sole cause of the plaintiff's injury." Id. at 1253 (quotation and alterations omitted). This is particularly so where the prospective witness's own academic work suggests those alternatives and has criticized others' work as "uninformative" for failing to properly account for them. The very "objective" of a court's performance of its role as gatekeeper under Rule 702 "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd., 526 U.S. at 152, 119 S.Ct. 1167.

The court holds that plaintiffs have failed to carry their burden of establishing that Dr. Borjas's analysis, as described in his report, could reliably evidence the propositions for which they offer it. To any extent Dr. Borjas's tailored-for—(this increasingly popular strain of)—litigation testimony would be probative on the question of whether defendants' predicate RICO violations were the direct, substantial, but—for cause of plaintiffs' injury, that slight value is far outweighed by the likelihood his testimony would confuse and mislead a jury. "[C]ourts must take care to weigh the value of such [expert] evidence against its potential to mislead or confuse." Frazier, 387 F.3d at 1263. The "specific issue" a court must assess is the "reasonableness of using [the proffered] approach, along with [the expert's] particular method of analyzing the data thereby obtained, to draw a conclusion regarding the particular matter to which the expert testimony was directly relevant." Kumho Tire Co. Ltd., 526 U.S. at 153-54, 119 S.Ct. 1167 (emphasis in original). "`[A]ny step that renders the analysis unreliable under the Daubert factors renders the expert's testimony inadmissible.'" McClain v. Metabolife International, Inc., 401 F.3d 1233, 1245 (11th Cir.2005) (quoting Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 267 (2d Cir.2002)) (emphasis in original). Any of the above-identified flaws in the methodology Dr. Borjas proposes could, alone, render his analysis unreliable; together, they are fatal. Dr. Borjas's expert report is due to be stricken and, hence, his testimony excluded.

C. Defendants' Motion for Summary Judgment

Plaintiffs do not appear to contest that Dr. Borjas's report, and the proposed testimony it represents, is the only evidence before the court on the causation and damages elements of their cause of action.206 Because that report is due to be excluded, defendants' motion for summary judgment is due to be granted on the basis that plaintiffs have failed to present evidence of damages and causation.

Plaintiffs' failure to causally link any wage depression that may have occurred to the RICO predicate acts, as § 1964(c) requires, is perhaps unsurprising, because plaintiffs have not provided sufficient evidence that the predicate offenses occurred at all. In their complaint, plaintiffs alleged violation of two provisions of 8 U.S.C. § 1324(a) as possible predicate acts for their RICO claim. First, they assert that defendants or their co-conspirators violated § 1324(a)(3)(A) (the "hiring" provision), which makes it illegal, "during any 12-month period, [to] knowingly hire[ ] for employment at least 10 individuals with actual knowledge that the individuals are aliens as described in [§ 1324(a)(3)(B)]." 8 U.S.C. § 1324(a)(3)(A). Section 1324(a)(3)(B), in turn, defines "alien" as (1) "an unauthorized alien" who is not either lawfully admitted for permanent residence or authorized to be employed, who (2) "has been brought into the United States in violation of [§ 1324(a)]." 8 U.S.C. § 1324(a)(3)(B). The Eleventh Circuit has helpfully parsed this multiply-recursive language into its constituent elements and clarified their relationship to one another. Edwards v. Prime, Inc., 602 F.3d 1276, 1292-93 (11th Cir.2010). For an employer to violate the section, he must not only hire ten individuals in a calendar year with actual knowledge that they are unauthorized for employment in this country, but must also have actual "knowledge that the alien was brought into the country illegally." Id. at 1293.

This final element is critical, as the Eleventh Circuit noted in Edwards, because it demarcates the distinction between a crime under the INA that "would be a RICO predicate act" and one that "would not be a RICO predicate act." Id. "`If the employer does not know that at least 10 of its illegal hires were `brought into' the country by some third party (as opposed to walking across the border themselves, or arriving on a visitor's or student visa and outstaying their welcome), then it has not committed a RICO predicate act by hiring them....'" Id. at 1293 (quoting Nichols v. Mahoney, 608 F.Supp.2d 526, 534 (S.D.N.Y.2009)). The emphasis placed upon this element is a central part of the congressional design of both the INA itself and its selective incorporation § 1961(1)(F) of RICO in 1996. Id. This court drew a particularly sharp line under this requirement very early in this case, "hold[ing] that the proper construction" of this provision required proof that defendants hired "ten or more individuals... with actual knowledge that such individuals have entered the United States with some assistance or encouragement from another person."207

Assuming, arguendo, that plaintiffs have adduced sufficient evidence, through their immigration expert Johnston, to create a genuine dispute about whether defendants hired aliens with actual knowledge that they were unauthorized,208 plaintiffs fail even to squarely argue defendants had actual knowledge those aliens were illegally brought into the United States. Indeed, tellingly, plaintiffs never even use the phrase "brought into" or any phrase with a similar meaning in the seven pages devoted to "actual knowledge" in their brief opposing summary judgment.209

Plaintiffs contend that "brought in" should be given a liberal interpretation to "include .... assistance of any kind, either prior to entry or after."210 In support of this proposition, plaintiffs cite several cases from other circuits to suggest that "brought" has abroad meaning.211 All of these cases are decidedly inapposite, as they each interpret a different provision that makes it illegal to "bring to the United States in any manner whatsoever" an alien who has not received prior authorization. United States v. Gasanova, 332 F.3d 297, 299-300 (5th Cir.2003) (quoting 8 U.S.C. § 1324(a)(2)(B)); United States v. Yoshida, 303 F.3d 1145, 1151-53 (9th Cir. 2002); United States v. Aslam, 936 F.2d 751, 755 (2d Cir.1991). The "in any manner whatsoever" language does not appear in § 1324(a)(3)(A). Yet it is precisely these courts' recitation of that language to which plaintiffs point in urging this court to read "brought into" in § 1324(a)(3)(A) as "assistance of any sort," including in obtaining false documentation.212 This court need not determine, however, whether these constructions of "bring[ing] to," extended as they are by that language, should be coextensive with "brought to," actual knowledge of which is required to violate § 1324(a)(3)(A). At most, the cases plaintiffs rely upon establish that facilitating the illegal entry of an alien can constitute "bringing to," even if the defendant only physically accompanied the aliens from the United States border to their immediate destination. Aslam, 936 F.2d at 755 (finding "meeting the aliens on the United States side of the Canadian border and being available to drive them to some interior point" sufficient to support a conviction under the "bringing to" prohibition); see also Yoshida, 303 F.3d at 1152 (finding it irrelevant that defendant "did not actually pilot the airplane to the United States" when the evidence established that "[s]he escorted the aliens onto the airplane that eventually landed in the United States"). They certainly do not hold that "assistance in obtaining stolen security numbers and other fake I.D.s in order to obtain employment at the plant," once an individual has established residence in the United States, would constitute "bringing in."213

Plaintiffs simply provide no admissible evidence whatsoever that even remotely suggests that defendants or their co-conspirators had actual knowledge that any individual they hired was "smuggled (`brought') into the United States," much less the ten in a calendar year that the statute requires. Nichols, 608 F.Supp.2d, at 543. "An employer may know that it hired illegal aliens without knowing how they made their way into the United States," which would not violate the hiring provision. Edwards, 602 F.3d at 1294. Plaintiffs contend it is simply "common knowledge" that unauthorized aliens must obtain some help in coming to this country "because they cannot cross alone."214 Were that sufficient, the "brought into" requirement would functionally be written out of the statute. Moreover, the Eleventh Circuit has noted multiple means by which aliens may come to this country without the variety of aid that the "brought into" element contemplates, including overstaying a student visa, walking across the border, or visiting as a tourist and remaining to work. Id. at 1294.

The closest plaintiffs come to providing even a scintilla of evidence directed to the "brought to" element is the declaration of a former Pilgrim's Pride employee,215 which avers that the declarant overheard alleged co-conspirator, Sheila Walters, tell another employee to tell a crowd of Hispanic workers who had staged a walk-out during a unionization campaign the following: "I know you have to get your papers right. I can send you back just like I brought you here."216 This supposed admission is abject hearsay. Plaintiffs assert, in a footnote elsewhere in their brief, that it should be admissible as a statement made by a co-conspirator made in furtherance of the conspiracy.217 See Fed.R.Evid. 802(d)(2)(E). Plaintiffs fail entirely to support this bald assertion with even a single line of argument, as expressly required under the coconspirator exception to the hearsay exclusion. Id. ("The contents of the statement ... are not alone sufficient to establish ... the existence of the conspiracy and the participation therein...."); see United States v. Underwood, 446 F.3d 1340, 1346 (11th Cir.2006) (proponent must present evidence tending to show "(1) a conspiracy existed, (2) the conspiracy included the declarant and the defendant against whom the statement is offered, and (3) the statement was made during the course of and in furtherance of the conspiracy"). Further, given its terminal ambiguity, even if this statement were admissible, it would not create a genuine dispute as to whether ten individuals had been hired in a calendar year with actual knowledge they had been brought into the country in violation of § 1324, as the statute requires. Accordingly, plaintiffs' hiring violation claim fails as a matter of law.

Plaintiffs' claim based upon § 1324(a)(1)(A)(iii) (the "harboring" provision) as a predicate similarly fails to pass muster. Concededly, there are dicta in Edwards, 602 F.3d 1276, suggesting that employment of an unauthorized alien may alone constitute "harboring" within the meaning of § 1324(a)(1)(A)(iii). Id. at 1298-99. That case indicates that "knowingly employing illegal aliens alone" may be enough, based upon Congress's deletion of a proviso from the version of § 1324(a) that existed prior to 1986 which stated that "employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring." Id. at 1299 (citing 8 U.S.C. § 1324(a) (1982)). Nonetheless, that portion of the opinion relies largely upon the reasoning of a Second Circuit decision, United States v. Kim, 193 F.3d 567, 573-74 (2d Cir.1999), which held that both "conduct tending substantially to facilitate an alien's remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence" were necessary elements of a harboring violation. Id. at 574 (emphasis supplied); cf. Edwards, 602 F.3d at 1298-99 (citing Kim). While Kim clearly establishes that employers may be liable under the section and that employment itself may be integral to this analysis, Kim, 193 F.3d at 572-74, the Second Circuit's evidentiary observations regarding prevention of detection strongly indicate that knowing employment of an unauthorized immigrant, without more, would not be enough under the analysis they employed. Id. at 575 (discussing employer's "instruct[ions] to report falsely to INS" and to "obtain false documentation and to submit a [misleading] 1-9" as "permit[ting] the inference that [defendant] attempted to prevent [unauthorized alien's] continued presence from being detected by authorities"); see also United States v. Khanani, 502 F.3d 1281, 1289 (11th Cir.2007) (stating that mere knowing employment, absent some conduct indicating further inducement or encouragement, would not be enough).

The conclusion that § 1324(a)(1)(A)(iii) requires more than simple employment of an illegal immigrant is consistent with both the plain text and context of the provision. E.g., Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1215 n. 6, 173 L.Ed.2d 51 (2009) (reiterating the usual "impropriety of looking beyond the plain text"); Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." (internal citations and quotation marks omitted)); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir.1997) ("In construing a statute we must begin, and often should end as well, with the language of the statute itself."). "In [this] circuit, `[w]hen the import of the words Congress has used is clear ... we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.'" Shotz v. City of Plantation, Florida, 344 F.3d 1161, 1167 (11th Cir.2003) (quoting United States v. Weaver, 275 F.3d 1320, 1331 (11th Cir. 2001)).

Section 1324(a)(1)(A)(iii) makes it a crime to "knowing[ly] or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceal[ ], harbor[ ], or shield[ ] from detection ... [an] alien in any place, including any building or any means of transportation...." 8 U.S.C. § 1324(a)(1)(A)(iii) (emphasis supplied). Editions of Black's Law Dictionary that were roughly contemporaneous to Congress's revision of § 1324 into its current form defined "Harbor" as "to give shelter or refuge to," or "to receive clandestinely and conceal[ ]," and gives examples of "furnishing of shelter, lodging, or food clandestinely or with concealment...." Black's Law Dictionary 847 (4th ed. 1951); see also Black's Law Dictionary 717 (6th ed. 1991) (same); Webster's Third New International Dictionary 1031 (1981) (defining "harbor" as "to give shelter or refuge to" and "to receive clandestinely and conceal").218 The plain language reading of "harbor" to require provision of shelter or refuge, or the taking of active steps to prevent authorities from discovering that the employee is unauthorized or illegally remaining in the country, should control.

This construction is bolstered by reading the provision in context with other revisions enacted alongside the current version of the harboring proscription. Section 1324(a)(3)(A), for example, provides a significantly lesser criminal penalty (a maximum of five years, as opposed to the maximum of ten years for violations of § 1324(a)(1)(A)(iii) for commercial benefit, under § 1324(a)(1)(B)(i)) for hiring an unauthorized alien when that hiring is done with actual knowledge that the alien was unauthorized as well as that he was brought illegally into the country, whereas § 1324(a)(1)(A)(iii) requires only reckless disregard of the illegal status of the alien. Absent clear and mandatory authority, this court will not impute such irrationality to Congress as to construe § 1324 to contain both a clearly applicable statutory provision with a lesser penalty and more stringent mens rea requirement and a statutory provision merely-implicitly-applicable to the same conduct with a greater penalty and more relaxed mens rea requirement. See Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196-197, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980) (per curiam) ("Absent a far clearer expression of congressional intent, we are unwilling to read the Act as creating such a seemingly irrational .... system."). Further, the contemporaneously enacted provision 8 U.S.C. § 1324a(a)(1)(A) makes it "unlawful for a person or other entity ... to hire ... for employment in the United States an alien knowing the alien is an unauthorized alien," and provides for "criminal sanctions... [that] are much less stringent than those prescribed for a violation of § 1324." United States v. Zheng, 306 F.3d 1080, 1085 (11th Cir.2002). While the Eleventh Circuit has counseled that the partial redundancy of these provisions should not be construed to limit the meaning of § 1324, it has regularly utilized the context of the entirety of the Immigration Reform and Control Act of 1986, Pub.L. NO. 99-603 (which revised fully § 1324 and created § 1324a), in construing the scope of the provisions contained therein. E.g., Zheng, 306 F.3d at 1086-87 ("Congress understood th[e] problem [of illegal employment and its harmful effects] and chose to penalize employers for hiring illegal aliens and harboring them from detection by providing transportation and housing for them.") (emphasis supplied); see also Edwards, 602 F.3d at 1293 (discussing the distinctions between § 1324a(a)(1)(A) and § 1324(a)(3)(A) and noting that the "added element [of actual knowledge] makes a difference when it comes to penalty.").

Even assuming "harbor" is ambiguous, utilizing the "traditional tools of statutory construction" reinforces a construction of "harbor" that requires something more than simple employment of an unauthorized worker in reckless disregard of that status. Shotz, 344 F.3d at 1167 ("If the statutory language is not entirely transparent, [courts should] employ traditional canons of construction before reverting to legislative history ...." (internal citations and quotation marks omitted) (alteration in original)). The canon of noscitur a sociis counsels in favor of an interpretation of "harbor" that is consistent with the other verbs with which it is in a series, namely "conceal[ ]" and "shield[ ] from detection." Graham County Soil and Water Conservation District v. U.S. ex rel. Wilson, ___ U.S. ___, 130 S.Ct. 1396, 1402, 176 L.Ed.2d 225 (2010) (stating that the noscitur "maxim, literally translated as `it is known by its associates,' counsels lawyers reading statutes that `a word may be known by the company it keeps'" (internal citations omitted)). Both "conceal" and "shield" indicate some deliberate, affirmative interference with discovery, a quality "harbor" can readily be construed to share when read as providing shelter, transportation, or other aid in avoiding detection (such as directing an alien where she might purchase false citizenship documents). Simple employment, however, even if done with knowledge of an alien's status as such, does not of itself share this connotation. Further, even were the word terminally ambiguous, because § 1324 is a penal statute, the rule of lenity would counsel strongly that it be construed in favor of defendants, a reading that comports wholly with the principle dictionary definition and would exclude mere employment. United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) ("The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.").

This reading is also in accord with all examined holdings in the Eleventh Circuit as well as other Circuits. E.g., Edwards, 602 F.3d at 1299 (holding employing illegal along with "provid[ing] them with social security numbers and names, and pa[ying] them in cash in order to conceal, harbor, and shield the[m] from detection" sufficient); United States v. Cuevas-Reyes, 572 F.3d 119, 122 (3d Cir.2009) ("[W]e adopted the test of our sister circuits: `harboring, within the meaning of § 1324, encompasses conduct tending substantially to facilitate an alien's remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.'" (quoting Kim, 193 F.3d at 574)); United States v. Tipton, 518 F.3d 591, 595 (8th Cir.2008) ("`Harboring' means any conduct that substantially facilitates an alien's remaining in the United States illegally," such as "by granting them employment, by providing the aliens a place to live, daily transportation, and money to purchase necessities, and by maintaining counterfeit immigration papers for each alien"); United States v. Shum, 496 F.3d 390, 392 (5th Cir.2007) (requiring, as a necessary element of a harboring violation, proof that "the defendant's conduct tended to substantially facilitate the alien remaining in the United States illegally"); Zheng, 306 F.3d at 1086 (finding sufficient evidence that defendants "harbored the illegal aliens by providing both housing and employment") (emphasis supplied). Accordingly, while it is clear that the act of employing an illegal alien may be significant evidence that an employer has harbored an unauthorized alien in violation of § 1324, unless that employer has provided further material aid constituting "substantial facilitation," that alone is not sufficient.

Under this construction, plaintiffs' harboring claim must fail as a matter of law. In their complaint, plaintiffs contended defendants violated § 1324(a)(1)(A)(iii) by conspiring to provide free housing and transportation to illegal immigrants and by employing them.219 As the statutory analysis above indicates, the crux of plaintiffs' harboring claim must be proof that defendants provided free housing and transportation. Plaintiffs concede, in a footnote, that "they do not have sufficient evidence of transporting," and all but admit they have insufficient competent evidence defendants housed unauthorized workers. The only evidence to which plaintiffs point suggesting that defendants (or their alleged co-conspirators) provided room and board to unauthorized immigrants is the testimony of plaintiff Hall.220 She indicated that Pilgrim's Pride "was housing [illegal immigrants] for four weeks ... to help them get up on their feet[ ]."221 Hall provided two bases for this belief. First, she indicated that she once saw a company van pick up workers of Hispanic ethnicity at a trailer park and transport them to the facility.222 However, she provides no basis whatsoever to believe these individuals were unauthorized to work in this country. Moreover, her testimony suggests that the occurrence was so rare that "[e]verybody was talking about it within the plant."223 Second, she states that the basis for her belief that the company provided housing and perhaps transportation to unauthorized workers was that she "talked to a Hispanic on night shift"—and "whether it was a rumor or the truth, he's the one that said it."224 Hence, her belief is patently based upon hearsay. Indeed, Hall candidly admits that she has no "personal knowledge" that plant managers directed staff to arrange for free temporary room and board or transportation.225 Plaintiff Hall's unsupported belief that the company provided housing to unauthorized immigrants, premised purely on hearsay and speculation, cannot indicate defendants engaged in activity constituting "harboring."

Plaintiffs also proffer a new factual theory of a purported harboring violation to oppose defendants' motion for summary judgment that was not contained in their second amended complaint: i.e., that defendants or their co-conspirators "tipped off" unauthorized workers prior to raids by immigration officials.226 Such an action, presumably, would violate § 1324(a)(1)(A)(iii). However, upon inspection, the evidence plaintiffs rely upon for this new allegation fails entirely to implicate defendants. Plaintiffs first point to plaintiff Rocha's deposition and interrogatory answers, wherein he asserts that "Carlos and Benito Chavez, lead men, they have knowledge about tipping off known illegal workers prior to INS raids...."227 Rocha clarified that this referred to a man named Carlos Baltizar who, at an unknown point in 1997 or 1998, stated that immigration officials were "coming to Russellville."228 Plaintiffs, however, make no attempt to link these two individuals to defendants or the conspiracy they allege.229 Hence, it is entirely unclear how such evidence could support a harboring violation that would, as plaintiffs assert, "establish a pattern of racketeering [in violation of] § 1961(5)."230 Plaintiffs attempt to shore up their "tipping off" contention by suggesting Hall's testimony corroborates the assertion. It blatantly does not.231 At most, plaintiff Hall indicates that she saw some "Hispanics," though she cannot remember how many, hiding on the one occasion during her fifteen year tenure, in "the later '90s or the early 2000s," when immigration officials came to the Russellville facility.232 She expressly states that she did not hear anyone, much less either defendant or any alleged co-conspirators, telling them to do so233 Beyond that, she only indicates that there were occasionally "rumors" that immigration officials would be in town and that, on those days, workers in her department would be absent.234 Only abject speculation could render this evidence of a harboring violation attributable to defendants.235

Accordingly, and in the alternative, defendants' motion for summary judgment is due to be granted because plaintiffs have failed to submit competent evidence of a pattern of racketeering conduct—that is, evidence from which a jury could find that defendants "commit[ted] at least two distinct but related predicate acts." Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1283 (11th Cir.2006).

IV. CONCLUSION

As a matter of policy, there is great appeal to the argument that the problem of illegal immigration in this country may best be dealt with by holding accountable those whose actions create much of the incentive for unauthorized immigrants to flood into the United States, namely, the employers who hire them. See Affordable Housing Foundation, Inc. v. Silva, 469 F.3d 219, 231 (2d Cir.2006) ("Employment is the magnet that attracts aliens here illegally."). Given the scarce resources available, deputizing private citizens through the mechanisms of RICO, likewise, makes a great deal of practical sense. See Williams, 465 F.3d at 1290 ("It is consistent with civil RICO's purposes—to expand enforcement beyond federal prosecutors with limited public resources—to turn victims (here, Mohawk's legal workers) into prosecutors as private attorneys general seeking to eliminate illegal hiring activity by their own employer."). Yet "whatever the merits of [those] arguments as a policy matter, [this court] is not at liberty to rewrite RICO [or, for that matter, the Immigration and Nationality Act] to reflect ... views of good policy." Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 660, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008). Plaintiffs have not provided sufficient evidence in support of their claims to create a genuine issue of material fact as to whether defendants violated the relevant provisions of the Immigration and Nationality Act, and, whether they were damaged "by reason of" those violations. 18 U.S.C. § 1964(c).

Accordingly, and in light of the foregoing, it is ORDERED, ADJUDGED, and DECREED that: defendants' Motion for Summary Judgment and Motion to Exclude the Testimony of George Borjas are due to be, and the same hereby are, GRANTED; and that all claims of plaintiffs be, and the same hereby are, dismissed with prejudice. Plaintiffs' Motion for Further Discovery pursuant to Rule 56(f) is DENIED. Defendants' Motion to Exclude the Testimony of James M. Johnston and plaintiffs' Motion to Amend or Correct the Scheduling Order are both DENIED, as moot. Costs are taxed to plaintiffs. The Clerk is directed to close this file.