PER CURIAM:
Appellants Jaime Varela and Yesica Wiegert bring this civil action alleging RICO violations against their former employers, Appellees David Benitez Gonzales, Ana Cristina Benitez, Intelligent Mexican Marketing, Inc., and Marketing and Inventory Management, L.L.C. Appellants allege that Appellees' hiring of undocumented workers resulted in the depression of their wages. On appeal, Appellants challenge the district court's dismissal of their second amended complaint for failure to establish RICO standing, as well as the district court's denial of their motion for leave to file a third amended complaint. For the reasons below, we affirm the judgment of the district court.
Appellees Intelligent Mexican Marketing, Inc. ("IMM") and Marketing and Inventory Management, L.L.C. ("MIM") are Texas-based entities engaged in business marketing, advertising, and consulting services for companies in the U.S. Hispanic market.
Appellant Jaime Varela worked as a sales representative for Appellees in Dallas,
Appellants allege that their wages were depressed due to Appellees' racketeering activity — specifically, Appellees' "transporting, harboring, encouraging entrance of, and hiring of illegal aliens," which "expanded the labor pool [Appellees] draw from." According to Appellants, Appellees took these actions because of the "significant wage savings" that result from hiring undocumented workers. Appellants allege that Appellees used the enterprise of MIM and IMM to knowingly hire undocumented workers in all positions, including sales representatives. Appellees allegedly hired at least ten undocumented workers during the calendar years 2010, 2011, 2012, and 2013.
In support of their contention that Appellees' actions caused Appellants' alleged wage depression, Appellants rely on data used by the Bureau of Labor Statistics showing that the average salary in Dallas and Houston for employees in advertising and consulting services is between $78,000 and $81,000. Appellants further allege that "[d]epressed wages necessarily occur as a direct result of the expansion of the labor pool by the use of legal and illegal workers," and that this effect occurs "regardless of the market ... power of the employer." In addition, Appellants allege that the dollar amount of the wage depression caused by the use of undocumented workers is calculable with reasonable precision, estimating that "the direct effect of the employment of only ten undocumented workers out of one hundred workers is a loss of between $8,455 and $14,959 per worker, per year."
Appellants, on behalf of themselves and others similarly situated, filed this action against Appellees on March 27, 2013, alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. The First Amended Complaint ("FAC")
Appellants filed a Second Amended Complaint ("SAC") on November 14, 2013. In an attempt to cure the deficiencies with respect to proximate cause, Appellants attached to the SAC an expert report purportedly authored by an economist, Dr. Nathan Berg.
A district court's dismissal under Rule 12(b)(6) is reviewed de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs." Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011). Rule 8 of the Federal Rules of Civil Procedure does not require "detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Accordingly, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. A plaintiff's claim must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A district court's denial of a motion to amend is generally reviewed for abuse of discretion. Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir.2009). Although leave to amend should be "freely give[n] ... when justice so requires," Fed.R.Civ.P. 15(a)(2), a district court may refuse leave to amend if the filing of the amended complaint would be futile, i.e., "if the complaint as amended would be subject to dismissal," Ackerson, 589 F.3d at 208. Where "the district court's denial of leave to amend was based solely on futility, we apply a de novo standard of review identical, in practice, to the standard used for reviewing a dismissal under Rule 12(b)(6)." City of Clinton v. Pilgrim's Pride Corp., 632 F.3d 148, 152 (5th Cir.2010).
A civil action under RICO may be brought by "[a]ny person injured in his business or property by reason of a violation of" RICO's substantive provisions. 18 U.S.C. § 1964(c) (emphasis added). The
The Court revisited RICO standing in Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453-54, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006), in which the plaintiff, a competitor of the defendants, alleged that the defendants injured it by failing to charge New York sales tax to cash-paying customers, thus allowing the defendants to reduce prices without affecting profit margins.
The Supreme Court addressed civil RICO standing most recently in Hemi Group, LLC v. City of New York, 559 U.S. 1, 4, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010), in which the city of New York filed suit against the defendant, a corporation
We have not addressed whether legally authorized workers have RICO standing to bring a claim based on allegations of depressed wages caused by an employer's hiring of undocumented workers, although several other circuits have weighed in on this issue. Compare Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1287-92 (11th Cir.2006) (holding that plaintiffs, employees of a carpet and rug manufacturer, had standing to bring RICO claim based on allegations that the manufacturer conspired to hire undocumented workers to keep wages low), Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 605, 615-20 (6th Cir.2004) (allowing civil RICO claim to proceed where employees alleged that Tyson Foods engaged in a scheme to depress wages by hiring undocumented workers), and Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168-72 (9th Cir.2002) (holding that a group of legally documented agricultural workers, who alleged that the defendant fruit grower's hiring of undocumented workers directly harmed them by depressing their wages, stated a civil RICO claim), with Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708-13 (11th Cir.2014) (dismissing similar claims for failure to sufficiently plead RICO injury or proximate cause), and Baker v. IBP, Inc., 357 F.3d 685, 692 (7th Cir.2004) (noting, in dicta, "the difficulty of establishing that unlawful hiring of aliens caused a diminution in ... wages").
However, we need not decide whether a civil RICO claim based on allegations of depressed wages caused by the hiring of undocumented workers may ever proceed, as the allegations here are clearly insufficient to state such a claim.
First, to the extent the SAC relies on conclusory assertions that depressed wages are the "direct result" of the Appellees' hiring of illegal workers, we need not accept such conclusory allegations as true. See Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ("[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."); see also Simpson, 744 F.3d at 713 ("[T]he plaintiffs cannot plausibly establish proximate cause merely by tacking a conclusory allegation onto their high-level market claims.").
It is unclear whether Appellants are alleging that Appellees' hiring of illegal workers depressed wages only within IMM and MIM, or within the broader market including Appellees' competitors. The former theory would be plausible only if IMM and MIM had substantial market power in the relevant labor market. See Baker, 357 F.3d at 692 (noting "the difficulty of establishing that unlawful hiring of aliens cause[s] a diminution in [documented workers'] wages" because "[w]orkers can change employers ... [which] should cause equilibration throughout the labor market"); cf. Mendoza, 301 F.3d at 1171 ("[T]he employees allege that the growers singularly have the ability to define wages in this labor market...."). The expert report attempts to resolve this issue by "assum[ing] ... monopolistic competition in the market" based on the small number of firms requiring "labor with specialized skills matched to the production of ... Hispanic food branding, distribution, and inventory management." But even if we took this assumption as true, the SAC does not adequately allege that Appellees hired
If Appellants instead are alleging that Appellees' hiring of illegal workers depressed wages throughout the industry (as opposed to within MIM and IMM), this theory too is implausible. Appellants make no attempt to define this market, other than by referring to data concerning advertising and consulting services employees in Dallas and Houston. Cf. Simpson, 744 F.3d at 707 ("[T]he amended complaint does not specify or even estimate the number of legal or illegal workers in the relevant market — however that market may be defined.") Nor have Appellants "describe[d] the relevant labor market in quantifiable terms" by, for example, suggesting "what percentage of that workforce is work-authorized." Id. at 710. Even if we could infer the size of this market, we deem implausible the notion that hiring fifty undocumented workers would have any tangible effect on wages in such a market. Cf. Williams, 465 F.3d at 1289 ("[Defendant] ... employ[ed] literally thousands of illegal, undocumented aliens at its manufacturing facilities in north Georgia...."). "In certain markets," it may be true that "there are enough illegal workers in the mixed-status labor pool to logically infer the depression of wages paid to legal workers." Simpson, 744 F.3d at 709-10. But "[t]he conclusion is not self-evident in all markets" and here, as in Simpson, "plaintiffs have alleged no facts to render it plausible." Id. at 710. Thus, Appellants have failed to sufficiently allege proximate cause.
In addition, Appellants' allegations are insufficient to establish that they suffered any injury, much less an "injur[y]... by reason of a violation of" RICO. 18 U.S.C. § 1964(c). Although Appellants conclusorily allege that they suffered depressed wages, the only facts they allege to support that conclusion are Varela's and Wiegert's respective annual salaries of $46,000 and $26,000, and the average salary for employees in advertising and consulting services in Dallas and Harris Counties ($78,000-$81,000). Although the latter figure is purportedly derived from data used by the Bureau of Labor Statistics, it is implausible to infer that the employees in that data set are comparable to Appellants solely because Appellants work within the broad field of advertising and consulting services. The expert report
Finally, the district court did not err by dismissing the SAC with prejudice and denying Appellants leave to file the TAC. We have reviewed the additional allegations contained in the TAC and conclude that they are insufficient to remedy the defects discussed above. The new facts only add detail to the allegations that Appellees hired undocumented workers at rates lower than they would otherwise pay documented workers. This does not render plausible the allegation that Appellants' wages were depressed, or that the hiring of undocumented workers caused such wage depression. The new allegations do not cure, for example, Appellants' failure to put forward adequate comparators to Wiegert and Varela, or to define the size of either Appellants' workforce or the relevant market. Thus, because the TAC would be subject to dismissal, the lower court did not err in denying leave to file the TAC. See Ackerson, 589 F.3d at 208.
For the foregoing reasons, the judgment of the district court is