Citations
- 618 F. Supp. 2d 1127
Full opinion text
ORDER
MARY H. MURGUIA, District Judge.
Currently pending before the Court are Defendants Dex Media, Inc. and Qwest Communications International, Ine.’s (“Corporate Defendants”) Motion for Summary Judgment (Dkt. # 256), and Defendants International Brotherhood of Electrical Workers Local 1269’s (“Union”) and Karen Ortega-Matson and Philip Wheeler’s (“Union Agents”) Motion for Summary Judgment (Dkt. # 257). Also pending before the Court is Plaintiffs Peter Marceau, Jon Bodine, Rhonda McKinney, Brian Pine, and Kathryn Smith’s (“Plaintiffs”) Motion for Adverse Inference Under Fed. R.Civ.P. 37(c). (Dkt. #272). After reviewing the pleadings and holding oral argument on March 18, 2009, the Court issues the following order.
I. BACKGROUND
A. Procedural History
This is a civil racketeering suit against the above-named Defendants. On September 19, 2005 Plaintiffs Peter Marceau, Jon Bodine, Rhonda McKinney, Brian Pine and Kathryn Smith (“Plaintiffs”) filed a Complaint against Defendants, asserting several claims arising out of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.CA. § 1962, et seq., and the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 186(a) and (b) [Section 302 of the Labor Management Relations Act (“LMRA”) ] (Compl. ¶¶ 85-131 (Dkt. # 1)). Plaintiffs amended their Complaint on August 15, 2006 (First Amend. Compl. (“FAC”) (Dkt. # 46)), then again after the close of discovery, on April 23, 2008 (Second Amend. Compl. (“SAC”) (Dkt. # 231)). Plaintiffs’ Second Amended Complaint eliminated all but two claims: (1) a RICO claim against Defendants Dex (and previously Qwest) (“Corporate Defendants”), and individual Defendants Ortega-Matson and Wheeler (“Union Agents”) under 18 U.S.C. 1962(c) (Count I), and (2) a RICO conspiracy claim against Defendants Dex, Qwest, Union Agents, and Defendant International Brotherhood of Electrical Workers Local 1269 (“Union”) under 18 U.S.C. 1962(d) (Count II). (SAC ¶¶ 51-62). On May 22, 2009, Defendants moved for summary judgment on both of Plaintiffs’ civil RICO claims. (Dkt. # s 256, 257).
B. Factual Background
Plaintiffs are former or current “premise” sales representatives employed by Corporate Defendants in their Phoenix and/or Mesa, Arizona offices. (Plaintiffs’ Statement of Facts (“PSOF”) ¶¶2-14 (Dkt. #274); Union Defendants’ Statement of Facts (“UDSOF”) ¶ 1) (Dkt. # 244); Defendants’ Responsive Statement of Facts (“DRSOF”) ¶¶2-14 (Dkt. #284). Premise sales representatives (“premise representatives” or “sales representatives”) sell high-dollar Yellow Page advertising to select customers. (PSOF ¶ 20). During the relevant time period, Corporate Defendants published yellow page telephone directories for, among other locales, various cities in Arizona. (UDSOF ¶ 2). They also offered similar services on the internet. (Id.). Defendant Qwest owned and ran operations from July 2, 2000 until January 31, 2006. (Id. ¶ 3). Defendant Dex owned and ran operations from September 9, 2003 until January 31, 2006. (/