The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
Before the Court is Magistrate Judge Cudmore's Report and Recommendation (R&R) [Doc. 46] addressing Defendant's Motion to Dismiss All Counts of Plaintiffs' First Amended Complaint [Doc. 39]. The R&R recommends denial of the Motion to Dismiss, except for the conversion claims set forth in Counts II and V of the First Amended Complaint. Defendant has filed objections [Doc. 47] to the R&R and Plaintiffs have responded to these objections [Doc. 48]. For the reasons that follow, the R&R is ADOPTED. Defendant's request for oral argument is DENIED.
Plaintiff Vishal Goel originally filed this action against Patni Computer Systems, Inc., his former employer, in the Circuit Court of McClean County. Defendant Patni removed the case to federal district court based on diversity jurisdiction. Defendant then filed a motion to dismiss the original complaint, and the Court stayed discovery pending a ruling on that motion. [11/5/07 Text Order] The motion to dismiss was denied without prejudice after Plaintiff Goel was granted leave to file an amended complaint. Thereafter, Goel and an additional plaintiff, Peeush Goyal, filed their First Amended Complaint [Doc. 38], alleging common law fraud, conversion, and unjust enrichment. The complaint states that Defendant employed Plaintiffs in H-1B nonimmigrant status as computer consultants in Bloomington, Illinois. Plaintiff Goel maintains that Defendant paid him less than his earned wage, made improper deductions from his paycheck, failed to pay him a termination allowance and for accrued leave, and underpaid him for overtime. Plaintiff Goyal similarly alleges that Defendant did not pay him as promised and took improper deductions from his paycheck. Defendant has filed a Motion to Dismiss All Counts of Plaintiffs' First Amended Complaint.
In its motion to dismiss and its objections to the R&R, Defendant asserts that Plaintiffs' claims are preempted by the Immigration and Nationality Act, 8 U.S.C. § 1001, et seq. (INA). Defendant asserts that the administrative remedial scheme provided in 8 U.S.C. § 1182(n)(2)(A) and accompanying regulations is the only avenue through which Plaintiffs can seek relief for the grievances that they allege. [Def.'s Obj. to R&R at pp. 5-13] Defendant argues that an H-1B worker who has an employment related grievance must file a complaint with the Department of Labor (DOL) and appeal to an Administrative Review Board before seeking review in a federal district court. Alternatively, Defendant argues that, pursuant to Federal Rule of Civil Procedure 12(b)(6), Plaintiffs fail to state a claim for common law fraud, conversion, or unjust enrichment.
Magistrate Judge Cudmore has issued an R&R, finding that Defendant's preemption defense is without merit. [R&R at p. 9] Additionally, the R&R rejects Defendant's 12(b)(6) attack on Plaintiffs' fraud and unjust enrichment claims but recommends that Plaintiffs' conversion claims be dismissed on 12(b)(6) grounds. [R&R at p. 19] Defendant has objected to the R&R on the issues of preemption and unjust enrichment. Plaintiffs have responded to Defendant's objections by asking the Court to adopt the R&R in its entirety.
A district court reviews de novo any portion of a Magistrate Judge's Report and Recommendation to which a "specific written objection has been made." Fed. R. Civ. P. 72(b)(3). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences from those facts in the light most favorable to the plaintiff. Richards v. Kiernan, 461 F.3d 880, 882 (7th Cir. 2006). A plaintiff is not required to plead extensive facts, legal theories, or to anticipate defenses. Massey v. Merrill Lynch & Co., Inc., 464 F.3d 642, 650 (7th Cir. 2006). A plaintiff need only provide a short and plain statement of the claim, showing that relief is warranted, but must also provide more than conclusory statements that amount to recitations of the elements of the cause of action. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007).
Judge Cudmore has recommended that Defendant's Motion to Dismiss All Counts of Plaintiffs' First Amended Complaint be granted in part and denied in part. Neither party has objected to the Judge's recommendations that Plaintiffs' conversion claims be dismissed and that Plaintiffs' fraud claims survive Defendant's 12(b)(6) attack. As a result, the Court adopts those recommendations. See 28 U.S.C.A § 636(b)(1) (West 2008). The Court also adopts the Judge's finding that diversity jurisdiction is proper in this case. See R&R p. 3, n1. Defendant has objected only to the following recommendations: (1) that Plaintiffs' claims should not be dismissed on federal preemption grounds and (2) that Plaintiffs' unjust enrichment claims should survive Defendant's 12(b)(6) challenge. The Court addresses Defendant's objections below.
First, Judge Cudmore was correct to point out that federal preemption is an affirmative defense. Fifth Third Bank ex rel. Trust Officer v. CSX Corp., 415 F.3d 741, 745 (7th Cir. 2005). Generally, affirmative defenses should not be raised in 12(b)(6) motions. Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003). Nevertheless, the Court finds no reason to delay a ruling on Defendant's preemption defense. The defense raises a question of law, and ...