Drummond Company Inc et al v. Collingsworth et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 8/1/2017. (KAM, )
2017 Aug-01 PM 02:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DRUMMOND COMPANY, INC. et al.,
Case No.: 2:15-cv-506-RDP
TERRENCE P. COLLINGSWORTH,
The court has before it Motions to Dismiss filed by Defendants Albert van Bilderbeek
and Francisco Ramirez Cuellar. (Docs. # 121 and 122). The Motions have been fully briefed
(Docs. # 125, 126, 128 and 129), and are ripe for decision.
On March 27, 2015, Plaintiffs Drummond Company, Inc. and Drummond Ltd.
(hereinafter collectively referred to as APlaintiff@ or “Drummond”) filed its Complaint in this
action. The Complaint alleges (1) violations of RICO, 18 U.S.C. ' 1962(c) (Count I), (2)
conspiracy to violate RICO, 18 U.S.C. ' 1962(d) (Count II), (3) willful and/or reckless
misrepresentation in violation of Alabama Code ' 6-5-101 (1975) (Count III), (4) fraudulent
concealment/suppression of material facts in violation of Alabama Code ' 6-5-102 (1975) (Count
IV), and (5) civil conspiracy (Count V). (Doc. # 1-1). Van Bilderbeek and Ramirez, like Ivan
Alfredo Otero Mendoza before them, seek to have the claims against them dismissed for lack of
personal jurisdiction and failure to state a claim. (See Docs. #121 and 122).
Standard of Review
A Rule 12(b)(2) motion tests the court’s exercise of personal jurisdiction over a
defendant. See Fed.R.Civ.P. 12(b)(2). “A plaintiff seeking the exercise of personal jurisdiction
over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts
to make out a prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260,
1274 (11th Cir.2009); see also Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir.1999)
(“A plaintiff seeking to obtain jurisdiction over a nonresident defendant initially need only allege
sufficient facts to make out a prima facie case of jurisdiction.”). If a plaintiff satisfies his initial
burden and a defendant then submits affidavit evidence in support of its position, the burden
traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction. See Meier ex
rel. Meier v. Sun Int=l Hotels, Ltd., 288 F.3d 1264, 1268 (11th Cir.2002); see also Posner, 178
F.3d at 1214 (“‘The plaintiff bears the burden of proving ‘by affidavit the basis upon which
jurisdiction may be obtained= only if the defendant challenging jurisdiction files ‘affidavits in
support of his position.’” (citation omitted)). When the issue of personal jurisdiction is decided
on the record evidence, but without a discretionary hearing, a plaintiff demonstrates a “prima
facie case of personal jurisdiction” by submitting evidence sufficient to defeat a motion made
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. See Snow v. DirecTV, Inc., 450
F.3d 1314, 1317 (11th Cir.2006). At this evidentiary juncture, the court construes the complaint=s
allegations as true if they are uncontroverted by affidavits or deposition testimony, id. at 1317;
where there are conflicts, the court “construe[s] all reasonable inferences in favor of the
plaintiff.” Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 199 Fed. Appx. 738, 741 (11th
Cir.2006) (quoting Meier, 288 F.3d at 1269).
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for failure
to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A court may dismiss
a complaint under Rule 12(b)(6) if a plaintiff fails to provide “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). That
is, if a plaintiff “ha[s] not nudged [her] claims across the line from conceivable to plausible, [her]
complaint must be dismissed.” Id.; see Ashcroft v. Iqbal, 139 S.Ct. 1937, 1953 (2009) (holding
that Twombly was not limited to antitrust cases but rather was based on an interpretation and
application of Federal Rule of Civil Procedure 8).
In deciding a Rule 12(b)(6) motion, the court must “accept all well-pleaded factual
allegations in the complaint as true and construe the facts in a light most favorable to the
non-moving party.” Dacosta v. Nwachukwa, 304 F.3d 1045, 1047 (11th Cir. 2002) (citing GJR
Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998)). “[U]nsupported
conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule
12(b)(6) dismissal.” Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (citing Marsh v.
Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001) (en banc)). Further, “[a] complaint
may not be dismissed because the plaintiff=s claims do not support the legal theory he relies upon
since the court must determine if the allegations provide for relief on any [plausible] theory.”
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)
(emphasis in original) (citing Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967)).
Nevertheless, conclusory allegations, unwarranted deductions of facts, or legal conclusions
masquerading as facts will not prevent dismissal. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d
1182, 1188 (11th Cir. 2002); see Kane Enters. v. MacGregor (USA) Inc., 322 F.3d 371, 374 (5th
Cir. 2003) (“[A] plaintiff must plead specific facts, not mere conclusional allegations, to avoid
dismissal for failure to state a claim. We will thus not accept as true conclusory allegations or
unwarranted deductions of fact.”) (internal citations omitted); Kirwin v. Price Commc=ns. Corp.,
274 F. Supp. 2d 1242, 1248 (M.D. Ala. 2003) (“[A]lthough the complaint must be read liberally
in favor of the plaintiff, the court may not make liberal inferences beyond what has actually been
alleged.”), aff=d in part, 391 F.3d 1323 (11th Cir. 2004).
Relevant Factual Allegations
The court addresses separately the allegations made against the two moving Defendants.
Allegations Regarding Albert van Bilderbeek
Van Bilderbeek is defined in the Complaint as one of the “RICO Defendants.” (Doc. #
1-1 at & 1. Therefore, all general allegations regarding the “RICO Defendants” made in the
Complaint apply to van Bilderbeek.1 Additionally, the Complaint contains very specific factual
allegations about van Bilderbeek:
Defendant Albert van Bilderbeek is a citizen and resident of the Netherlands.
Albert van Bilderbeek and his brother, Hendrik van Bilderbeek, are the principals
of Llanos Oil Exploration Ltd. (“Llanos Oil”), a Dutch entity that views
Drummond as a competitor in Colombia. Llanos Oil has made the wild accusation
that Drummond conspired with the Colombian government to steal oil and gas
rights from Llanos Oil. [Defendant] Collingsworth has a contract with the van
Bilderbeeks which entitles him [Collingsworth] to 33.3% of any recovery
obtained by Llanos Oil in relation to these oil and gas rights. In furtherance of the
RICO Defendants’ massive extortion campaign, Albert van Bilderbeek has in fact
paid at least one witness – Jaime Blanco Maya – at least $95,000 in exchange for
Blanco’s false testimony against Drummond. Van Bilderbeek’s personal interest
in such payments was to use this false testimony to not only harm Drummond, but
also to cause the Colombian government to cancel Drummond’s oil rights in
Colombia and give them to Llanos Oil. At Collingsworth’s direct request, Albert
van Bilderbeek paid money to Blanco, using Otero as a conduit, with the purpose
of obtaining false testimony against Drummond that the RICO Defendants could
utilize in their multifaceted and fraudulent scheme to extort money from
Drummond. Albert van Bilderbeek has also conspired with and assisted the RICO
Defendants in obtaining media exposure in Europe for the false allegations levied
against Drummond by witnesses who have been paid in exchange for their
By the court’s count, the term “RICO Defendants” appears 117 times in the Complaint. (Doc. # 1-1).
testimony. During the times relevant to this Complaint, Albert van Bilderbeek has
conducted business in Birmingham, Alabama through his agent, Collingsworth.
(Doc. # 1-1 at & 17).
Albert van Bilderbeek has (i) assisted the co-defendants in funneling money to
witnesses in Colombia which was sent by Albert van Bilderbeek to Ivan Otero, or
his employees or agents, in Colombia; (ii) assisted the co-defendants in obtaining
false testimony against Drummond, and did so with full knowledge that it would
be submitted in court proceedings in Alabama; (iii) entered into a contractual
agreement with co-defendant Collingsworth to pursue fraudulent claims against
Drummond, a known Alabama resident, relating to oil and gas rights in Colombia;
(iv) participated in or directed numerous phone calls, emails and other forms of
communications with the other RICO defendants and coconspirators in the United
States for the purpose of planning and carrying out their conspiracy and
extortionate scheme; (v) participated in and orchestrated media campaigns in
Europe designed to fraudulently influence government officials and the media for
the purpose of extorting money from Drummond. Albert van Bilderbeek
committed his illegal and wrongful acts with the purposeful intent that the effects
of his acts be felt in the United States, and Alabama in particular, by Drummond,
a known Alabama resident. Albert van Bilderbeek’s co-conspirators and agents
have also engaged in wrongful and illegal acts in the United States and in
Alabama. Albert van Bilderbeek was aware of the effects in Alabama of those
acts, which were for the benefit of van Bilderbeek, and his co-conspirators and
agents were working at the direction, under the control, at the request, and/or on
behalf of van Bilderbeek in committing those acts.
(Doc. # 1-1 at & 37).
The Enterprise also solicited financial assistance from Albert van Bilderbeek, a
principal of Llanos Oil. Llanos Oil previously sued Drummond in 2005 claiming
its oil rights in Colombia were “stolen” by Drummond, and that Drummond
conspired with the Colombian government to have Hendrik van Bilderbeek-- the
brother of Albert and another principal of Llanos Oil -- imprisoned in Colombia
on suspicion of money laundering and involvement with Colombian
drug-traffickers. Llanos Oil’s lawsuit against Drummond was dismissed
approximately 6 months after it was filed.
(Doc. # 1-1 at & 62).
By at least early 2010, Collingsworth and Albert van Bilderbeek began working
together on a plan to, in Collingsworth’s words, “clos[e] down Drummond.” On
May 3, 2010, Collingsworth and Albert van Bilderbeek entered into a contingency
fee agreement which provided that Collingsworth would receive 33% of any
recovery against Drummond in connection with oil and gas rights allegedly taken
from Llanos Oil. The agreement stated that Collingsworth had been providing
legal advice on this issue for approximately four months prior to the date of the
(Doc. # 1-1 at & 63).
On June 29, 2010, Collingsworth and Albert van Bilderbeek discussed media
coverage of Collingsworth’s allegations against Drummond, and strategized on
ways to garner additional media coverage with the Dutch press. During the course
of these discussions, Collingsworth informed Albert van Bilderbeek, “I look
forward to meeting and together closing down Drummond.” (Doc. # 1-1 at & 64).
Over the next several months, Collingsworth worked with Albert van Bilderbeek
in attempting to secure funding for the Enterprise’s fraudulent litigation against
Drummond, as well as spreading the false allegations of Drummond’s complicity
with the AUC throughout Europe. As described in more detail below, it is known
that Albert van Bilderbeek provided more than $95,000 to be paid to a person
Collingsworth has described as the “key witness” against Drummond.
(Doc. # 1-1 at & 65).
[Jaime] Blanco was arrested in September 2010 in connection with the murders
[of the three union leaders], and he provided testimony to the Colombian
authorities. He testified, under oath, that … he had no knowledge of Drummond
being involved with the deaths of the union leaders.
(Doc. # 1-1 at & 91).
Collingsworth began ingratiating himself with Blanco, asking Blanco to provide
testimony against Drummond … . Collingsworth told Blanco that Drummond was
trying to pin the union murders on him, and called Drummond their “mutual
enemy.” According to testimony by Collingsworth, at some point Blanco
requested assistance with his criminal legal fees.
(Doc. # 1-1 at & 94).
Collingsworth met with Blanco in July 2011 and told him that Conrad & Scherer
would be unable to make direct payments to him, but he had a person named
Albert van Bilderbeek that would be willing to pay. Collingsworth admits that he
facilitated these payments. The arrangement was set up for van Bilderbeek to wire
funds to Otero, who would then deliver them to Blanco.
(Doc. # 1-1 at & 96).
Collingsworth has admitted under oath that Blanco would not sign a declaration
for the Enterprise unless and until he was paid.
(Doc. # 1-1 at & 97).
In September 2011, Albert van Bilderbeek sent $60,000 to Otero to be given to
(Doc. # 1-1 at & 98).
Less than 30 days later, Blanco signed a declaration for the Enterprise falsely
accusing Drummond of being complicit in the union leader killings, as well as
providing regular payments to the AUC through Blanco’s food services company.
(Doc. # 1-1 at & 99).
In December 2011, Collingsworth facilitated another payment from van
Bilderbeek to Blanco, via Otero.
(Doc. # 1-1 at & 100).
In July 2012, the Enterprise made another $35,000 payment to Blanco.
Collingsworth facilitated another bank wire from Albert van Bilderbeek to Otero,
which Otero then gave to Blanco.
(Doc. # 1-1 at & 106).
[I]n 2010, Collingsworth began meeting with Albert van Bilderbeek in the
Netherlands, not only to discuss financing the fraudulent litigation against
Drummond, but also to garner media attention in the Netherlands. In an email
from June 2010 discussing their efforts with the Dutch press, Collingsworth
revealed his shared goal with van Bilderbeek of “closing down Drummond.”
Collingsworth has at times described the subject of his communications with van
Bilderbeek as “campaign case strategy.”
(Doc. # 1-1 at & 158).
In December 2010, … , Albert van Bilderbeek requested that Collingsworth send
him a letter addressed to members of the Dutch Parliament repeating the
Enterprise’s false claims. … Collingsworth finalized the letter on January 18,
2011, and emailed it to Albert van Bilderbeek to be hand-delivered to government
officials in Amsterdam. Van Bilderbeek also immediately published the letter on
the Llanos Oil website. After characterizing as “objective facts” the Enterprise’s
false allegations of Drummond’s complicity in human rights violations and mass
murder, Collingsworth concluded the letter by telling the Dutch Prime Minister, “I
hope that you will urge your government to terminate any business relationship
with Drummond until it makes full amends for the atrocities it committed in
(Doc. # 1-1 at & 159).
In February 2011, Collingsworth, with the editorial assistance of Albert van
Bilderbeek, prepared and sent another letter to Dutch government officials,
repeating the false claims that Drummond was complicit in murder. This letter,
too, was immediately published on the Llanos Oil website.
(Doc. # 1-1 at & 160).
Defendant Albert van Bilderbeek made payments to Jaime Blanco -- the “key
witness” against Drummond according to Mr. Collingsworth -- in exchange for
his false testimony against Drummond. Van Bilderbeek has also been intimately
involved in orchestrating media coverage in Europe for the false testimony of
these witnesses. Van Bilderbeek orchestrated this media coverage in an effort to
pressure Drummond’s European customers to cease doing business with
Drummond, to damage Drummond’s business interests, and to seek to have
Drummond implicated in criminal activity for his own financial benefit.
(Doc. # 1-1 at & 174(d)).
Plaintiff’s RICO claim against van Bilderbeek is premised on violations of (1) the
obstruction of justice statute, 18 U.S.C. § 1503 (Doc. # 1-1 at 164) and (2) the wire fraud statute,
18 U.S.C. § 1343. (Doc. # 1-1 at && 176-77). Plaintiff’s conspiracy to violate RICO claim,
misrepresentation and fraudulent suppression claims, and civil conspiracy claim are all also
stated against van Bilderbeek. (Doc. # 1-1 at && 98-104).
In support of his Motion to Dismiss, van Bilderbeek has presented his own affidavit, as
well as the affidavit of Terrence Collingsworth. (Doc. 121-1 and 121-2). In his affidavit, van
Bilderbeek states that both he and Collingsworth were involved in litigation against Drummond
and that they discussed their respective cases. (Doc. # 121-1 at && 25, 26). He further admits that
Collingsworth provided him “with statements concerning Drummond for dissemination in the
Netherlands” and that he “was able to refer contact details of Dutch government officials to assist
Mr. Collingsworth in sending certain statements about Drummond to them.” (Doc. # 121-1 at &
26). Van Bilderbeek confirms that “[p]ublic media statements issued by Mr. Collingsworth and
others were placed on Llanos Oil’s website.” (Doc. # 121-1 at & 27). However, van Bilderbeek
denies any nefarious intent in these actions and asserts that these statements did not influence any
Alabama proceedings. (Doc. # 121-1 at & 28). Van Bilderbeek further admits to arranging
payments to Jaime Blanco, but denies that those payments were for the purpose of securing
testimony against Drummond. (Doc. # 121-1 at && 30-31).
In response to van Bilderbeek’s evidentiary submission, Plaintiff has cited to evidence
2:11-cv-03695-RDP-TMP (“the Defamation case”). More specifically, Plaintiff points to factual
evidence filed in support of its Renewed Motion for Sanctions and to the court’s Memorandum
Opinion and Order on that Motion. (Case No. 2:11-cv-03695-RDP-TMP Docs. # 174, 417)
Evidentiary materials and testimony taken in that case show the following:
On September 8, 2010, Blanco was arrested and testified before the Colombian
Fiscalia that the allegation that Drummond paid the AUC through Blanco’s food
services company “is absolutely false and accounting-wise impossible.”
(Case No. 2:11-cv-03695-RDP-TMP, Doc. # 417 at 23).
On February 21, 2011 Collingsworth made email contact with Blanco.
On March 1, 2011, Collingsworth emailed Blanco and told him that Drummond
was trying to blame the union murders on Blanco.
In April 2011, Blanco requested that Defendants pay him $150,000 to cover legal
In July 2011, Collingsworth met with Ivan Otero and Blanco in a prison in
Colombia. Collingsworth sought a declaration from Blanco against Drummond.
(Id.). During that meeting Collingsworth stated to Blanco that he would ask Albert
van Bilderbeek to pay Blanco’s criminal legal fees. (Id.). That same month,
Collingsworth contacted van Bilderbeek, and Van Bilderbeek agreed to make
payments to Blanco via Ivan Otero.
On September 3, 2011 Albert van Bilderbeek made an initial $60,000 payment to
Blanco had refused to sign his declaration against Drummond until he received
the $60,000 payment.
(Case No. 2:11-cv-03695-RDP-TMP, Doc. # 417 at 24).
In October 2011, the month after he received the initial $60,000 payment, Blanco
signed a declaration for Defendants to be used in the civil cases against
Drummond. Two more payments were made from Albert van Bilderbeek to
Blanco totaling $85,000.
On April 19, 2012, Collingsworth handed Ivan Otero $10,000 in cash after Blanco
had provided (earlier that same day) the first day of his letters rogatory testimony
On July 19, 2012 Collingsworth confirmed a third payment to Blanco from Albert
van Bilderbeek in the amount of $35,000.
Allegations Regarding Francisco Ramirez Cuellar (“Ramirez”)
Ramirez is also named in the Complaint as one of the “RICO Defendants.” (Doc. # 1-1 at
& 1). Therefore the Complaint’s general allegations regarding the “RICO Defendants” apply to
him. Additionally, the Complaint contains the following specific factual allegations as to
Defendant Ramirez is believed to be a citizen of Colombia. Ramirez is sued both
individually and as an agent of Conrad & Scherer and IRAdvocates. He is a
Colombian lawyer, activist, and former President of a Colombian mineworkers’
union. In furtherance of the Enterprise’s extortionate schemes, he has used his
positions and influence with Colombian unions to damage Drummond’s union
relations. He has contracted with U.S. citizens Collingsworth and Conrad &
Scherer whereby he is promised a contingency fee in at least three U.S. civil cases
pending in Birmingham, Alabama, and has paid witnesses for testimony to be
used in those U.S. proceedings. In connection with those U.S. proceedings, he has
appeared as counsel during depositions in Birmingham, Alabama. He has been
represented to be a collaborating attorney with U.S.-based IRAdvocates. Upon
information and belief, he is married to a U.S. citizen, and resides at times in the
U.S. at an apartment he maintains in Flushing, New York.
(Doc. 1-1 at & 15).
Upon information and belief, Ramirez maintains a residence in New York.
Ramirez has also transacted business and engaged in illegal acts in the United
States and Alabama which give rise, in part, to Drummond’s claims. For example,
Ramirez has (i) met with the co-defendants and co-conspirators in the United
States, and in Alabama, to plan and execute their fraudulent scheme to extort
Drummond; (ii) assisted the co-defendants in funneling money to witnesses in
Colombia which was sent by the co-defendants from the United States to
Ramirez, or his employees or agents, in Colombia; (iii) assisted the co-defendants
in obtaining false testimony against Drummond, and did so with full knowledge
that it would be submitted in court proceedings in Alabama; (iv) received
thousands of dollars in payments from his co-defendants in the United States
which he used to further their multifaceted and extortionate campaign against
Drummond; (v) caused to be filed in the Northern District of Alabama three
fraudulent actions against Drummond (Baloco, Balcero and Melo); (vi) entered
into contractual agreements with co-defendants Collingsworth and Conrad &
Scherer entitling Ramirez to contingency fees in at least Baloco and Balcero; (vii)
participated in or directed numerous phone calls, emails and other forms of
communications with the other RICO defendants and co-conspirators in the
United States for the purpose of planning and carrying out their conspiracy and
extortionate scheme; (viii) participated in and orchestrated campaigns in the
United States designed to fraudulently influence government officials and the
media for the purpose of extorting money from Drummond. Ramirez committed
his illegal and wrongful acts with the purposeful intent that the effects of his acts
be felt in the United States, and Alabama in particular, by Drummond, a known
Alabama resident. Ramirez’s co-conspirators and agents have also engaged in
wrongful and illegal acts in the United States and in Alabama. Ramirez was aware
of the effects in Alabama of those acts, which were for the benefit of Ramirez, and
his coconspirators and agents were working at the direction, under the control, at
the request, and/or on behalf of Ramirez in committing those acts.
(Doc. 1-1 at & 35).
On March 14, 2002, Collingsworth, who was then the general counsel for a group
called the International Labor Rights Fund, filed a lawsuit against Drummond
falsely alleging Drummond had paid Colombian paramilitaries to murder three
leaders of the dominant labor union at the Colombian Mine: Valmore Locarno,
Victor Hugo Orcasita and Gustavo Soler. In his attempts to prosecute these false
claims, Collingsworth teamed up with Daniel Kovalik, general counsel of the
United Steelworkers of America, and Francisco Ramirez, then the president of a
Colombian mineworkers’ union.
(Doc. 1-1 at & 39).
The Romero [defense] verdict in July 2007 came as a crushing blow to
Collingsworth and his Colombian union collaborators, including Francisco
Ramirez. Following the verdict, Ramirez told the Miami Herald, “We’re just
getting started. . . . We are going to multiply our efforts to start a boycott. It’s the
only way to get justice in this case.”
(Doc. 1-1 at & 42).
After the vindication of Drummond by an Alabama court, Defendants began a
multifaceted campaign to destroy Drummond, and procure a fraudulent financial
windfall, using, inter alia, three fraudulent lawsuits, media campaigns in the U.S.,
Colombia and Europe, and multiple unions and activist groups, to spread the false
message that Drummond was complicit with a terrorist organization in the
murders of hundreds of Colombians. In an effort to bolster these claims, the
Enterprise funneled hundreds of thousands of dollars to Colombian criminals,
their families, and their lawyers. Based on information uncovered to date, the
payments exceed $478,000.
(Doc. 1-1 at & 43).
[A]fter the failure of Romero, Collingsworth and Ramirez needed to find new
financial backing for their fraudulent and extortionate campaign. Upon
information and belief, Romero was funded by the United Steelworkers … .
(Doc. 1-1 at & 44).
In 2008, the Enterprise’s agents “in the field” in Colombia included: Francisco
Ramirez … these individuals participated in recruiting plaintiffs for Defendants’
fraudulent lawsuits, and facilitating payments to witnesses to support the lawsuits.
(Doc. 1-1 at & 46).
In March 2012, both El Tigre and Samario gave their trial testimony in Balcero
via the letters rogatory process. Drummond and its counsel traveled to Colombia,
and each paramilitary was transferred by the authorities from their respective
prison to a Colombian courthouse to give this testimony. Francisco Ramirez
appeared as an attorney for the Balcero plaintiffs at the testimony of Samario.
(Doc. 1-1 at & 88).
The Enterprise also corruptly secured the false testimony of paramilitary Jose del
Carmen Gelvez Albarracin (“El Canoso”). Between 2006 and 2012, El Canoso
testified at least six times in the Justice and Peace process, and never once
claimed Drummond had any connections to paramilitaries.
(Doc. 1-1 at & 108).
Charris informed El Canoso that he had already provided a declaration to the
Enterprise, and offered to introduce him to Francisco Ramirez to provide
testimony against Drummond. El Canoso met with Ramirez in approximately
February 2011. In July 2011, Lorraine Leete (of IRAdvocates) met with El
Canoso’s wife in Colombia regarding his proposed “testimony.” On November
21, 2011, El Canoso, too, signed a declaration typed for him by the Enterprise.
(Doc. 1-1 at & 110).
In that declaration, El Canoso did not claim to have much knowledge about
Drummond, … . But the limited knowledge El Canoso claimed to have regarding
Drummond is objectively false. El Canoso claimed that he attended a meeting
with Drummond security officials during which Drummond and Prodeco
allegedly agreed to provide support to the paramilitaries. One of the employees of
Drummond Ltd. supposedly present was Luis Carlos Rodriguez. Although he did
not specify the date of the meeting, El Canoso testified it was during the time he
was employed by Prodeco and his employment ended in 1997. Luis Carlos
Rodriguez did not begin working for Drummond Ltd. until November of 1999,
some two years later.
(Doc. 1-1 at & 111).
Within seven days of El Canoso signing this declaration, a wire transfer in the
amount of $2,084 was made from the Conrad & Scherer Operating Account in the
United States to the Colombian bank account of El Canoso’s wife.
(Doc. 1-1 at & 112).
During El Canoso’s trial testimony, Yineth Baeza, assistant to Francisco Ramirez,
was present for the Enterprise. Collingsworth knowingly elicited perjured
testimony from El Canoso.
(Doc. 1-1 at & 114).
All members of the Enterprise present for El Canoso’s testimony (Collingsworth,
Leete, and Baeza) knew his testimony was unequivocally false, but did nothing to
correct the record. Instead, they submitted El Canoso’s false testimony to federal
district court in Alabama in support of their fraudulent lawsuits and as part of
their massive extortionate scheme.
(Doc. 1-1 at & 115)
The Enterprise utilized the resulting false, paid-for testimony in official
proceedings against Drummond to corruptly influence, obstruct, and impede the
due administration of justice in federal district court in Alabama and to further
their overarching fraudulent and multifaceted criminal campaign to extort money
from Drummond and otherwise damage its business interests.
(Doc. 1-1 at & 116).
[C]onsistent with Francisco Ramirez’s promise after the failed Romero case that
they would “multiply [their] efforts to start a boycott” of Drummond, the
Enterprise engaged in a worldwide public relations campaign, spreading their
false allegations and the “testimony” of their witnesses to anyone who would
(Doc. 1-1 at & 154).
Shortly after Collingsworth, with the editorial assistance of Albert van Bilderbeek,
prepared and sent two letters to Dutch government officials repeating the false
claims that Drummond was complicit in murder, Francisco Ramirez had his
assistant, Yineth Baeza, email Collingsworth to ask him to send the letters to
Marianne Moor of Pax Christi of the Netherlands (now called PAX, The
Netherlands), a non-governmental advocacy group. Collingsworth did so via
email on March 2, 2011. Upon information and belief, up to this point PAX, The
Netherlands had never published anything about Drummond. This all changed
when the Enterprise started feeding PAX their false and fraudulent allegations.
(Doc. 1-1 at && 160 161).
In October 2014, Marianne Moor and Francisco Ramirez publicly presented the
PAX “report” in Valledupar, Colombia.
(Doc. 1-1 at & 167).
Defendant Francisco Ramirez has been responsible for facilitating many of the
payments to, and procuring the false testimony of, Colombian criminals who
testified against Drummond. Ramirez has been intimately involved in recruiting
imprisoned Colombian criminals willing to offer false testimony in exchange for
money. He has also been instrumental in fabricating the substance of that false
testimony. Ramirez has also served as one of the most active members of the
criminal enterprise in disseminating false and fraudulent testimony and lies about
Drummond in the Colombian and U.S. media. Ramirez has also participated in
the fraudulent concealment of the Enterprise’s illegal activity.
(Doc. 1-1 at & 174(b)).
RICO Defendants Collingsworth, Bill Scherer, Conrad & Scherer, and
IRAdvocates have on multiple occasions, knowingly caused the transportation,
transmission, and/or transfer of funds to or from the United States to themselves
and to RICO Defendants Ivan Otero and Francisco Ramirez with the intent that
those funds be used to promote the carrying on of unlawful activity, including but
not limited to violations of 18 U.S.C. §§ 201, 1341, 1343 and 1951, including
payments to Colombian witnesses in exchange for false testimony against
(Doc. 1-1 at & 189).
The same claims asserted against van Bilderbeek are also asserted against Ramirez. (Doc.
# 1-1 at pp. 84-105.).
Defendants’ Motions present challenges to both the court’s personal jurisdiction over
them, the manner of service, and the sufficiency of Plaintiff’s pleadings. This court is bound to
address the issue of personal jurisdiction first. “As a general rule, when the court is confronted by
a motion raising a combination of 12(b) defenses, it will pass on the jurisdictional issues before
considering whether a claim was stated by the complaint.” C. Wright & A. Miller, Federal
Practice and Procedure: Civil 2d, 1351 at 243-44; see also Arrowsmith v. United Press Int’l.,
320 F.2d 219, 221 (2d. Cir. 1963) (holding that it was error for district court to dismiss action for
failure to state a claim prior to addressing challenges to personal jurisdiction and venue, because
dismissal on the former ground would be with prejudice, while dismissal for either of the two
latter grounds would be without prejudice).
The court applies a two-part analysis in determining whether there is personal jurisdiction
over a nonresident defendant. See Cable/Home Communication Corp. v. Network Productions,
Inc., 902 F.2d 829, 855 (11th Cir.1990); see also Alexander Proudfoot Co. World Headquarters
L.P. v. Thayer, 877 F.2d 912, 919 (11th Cir. 1989). First, the court considers the jurisdictional
question under the state long-arm statute.2 See Cable/Home Communication Corp., 902 F.2d at
855; see also Alexander Proudfoot Co., 877 F.2d at 919. If there is a basis for asserting personal
jurisdiction under the state statute, the next determination to be made is whether sufficient
minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment so that
“maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)); see also Cable/Home Communication Corp., 902 F.2d at 855; Alexander
Proudfoot Co., 877 F.2d at 919. The nature and quality of the contacts may vary depending on
the type of jurisdiction being asserted (specific or general). See Consolidated Dev. Corp. v.
When jurisdiction is based on a federal question arising under a statute that is silent regarding service of
process, the Federal Rules of Civil Procedure direct this court to look to the state long-arm statute in order to
determine the existence of personal jurisdiction. Cable/Home Communication Corp., 902 F.2d at 855. Drummond
does not contend that RICO=s nationwide service of process provision should apply here for purposes
Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000). Only if both prongs of the analysis are
satisfied may a federal or state court exercise personal jurisdiction over a nonresident defendant.
The reach of the Alabama long-arm statute is interpreted according to Alabama law.
Federal courts are required to construe the statute as would the Supreme Court of Alabama. See
Oriental Imports & Exports, Inc. v. Maduro & Curiel=s Bank, N.V., 701 F.2d 889, 890-891 (11th
Cir. 1983). Alabama has made clear that its long-arm statute permits personal jurisdiction to the
extent it “is not inconsistent with the constitution of this state or the Constitution of the United
States.” Ala.R.Civ.P.. 4.2(b). Thus, the question here is whether assertion of personal jurisdiction
over the individual defendants comports with the Fourteenth Amendment’s Due Process Clause.
See Olivier v. Merritt Dredging Co., Inc., 979 F.2d 827 (11th Cir. 1992) (citing Alabama
Waterproofing Co., Inc. v. Hanby, 431 So.2d 141, 145 (Ala. 1983)). The requirements of the
Fourteenth Amendment’s Due Process Clause are met where the defendant has minimum
contacts with the forum state, and where the exercise of personal jurisdiction does not offend
“traditional notions of fair play and substantial justice.” Olivier, 979 F.2d at 830-831; Madara v.
Hall, 916 F.2d 1510, 1516 (11th Cir. 1990) (quoting International Shoe, 326 U.S. at 316).
There are two types of personal jurisdiction: specific and general. Plaintiff contends that
this court has personal jurisdiction over van Bilderbeek and Ramirez based upon specific
jurisdiction. (See Docs. # 125 at 14 and 126 at 10). Specific jurisdiction is based on a party=s
contacts with the forum state that arise out of or are related to the cause of action. See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984); see also
Consolidated Dev., 216 F.3d at 1291.
The exercise of specific jurisdiction is proper over a nonresident defendant when he has
“‘purposefully directed= his activities at residents of the forum, and the litigation results from
alleged injuries that ‘arise out of or relate to’ those activities.” Burger King v. Rudzewicz, 471
U.S. 462, 473, 475 (1985) (internal citations omitted); Consolidated Dev., 216 F.3d at 1291.
Requiring there to be minimum contacts before a court exercises personal jurisdiction is
grounded in fairness. That requirement assures that “the defendant=s conduct and connection with
the forum State [is] such that he should reasonably anticipate being haled into court there.”
World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980). In cases of international
defendants, the court should also consider “[t]he unique burdens placed upon one who must
defend oneself in a foreign legal system.” Asahi Metal Indust. Co., Ltd. v. Superior Court, 480
U.S. 102, 114 (1987).
In assessing whether litigation “arises out of” the activities in the forum state, the
Eleventh Circuit does not use “mechanical or quantitative” tests, see Oldfield v. Pueblo De Bahia
Lora, S.A., 558 F.3d 1210, 1222 (11th Cir. 2009); however, it is “not enough that there [merely]
be some similarity between the activities that connect the defendant to the forum and the
plaintiff=s claim.” Licciardello v. Lovelady, 544 F.3d 1280, 1285 n. 3 (11th Cir. 2008). The
defendant=s contacts with the forum must be related to the “operative facts of the controversy.”
Id. Questions of specific jurisdiction are examined in the context of the particular claims
asserted C here, those claims are grounded in intentional tort.
To properly determine
jurisdiction, “a court properly focuses on ‘the relationship among the defendant, the forum, and
the litigation.’” Calder v. Jones, 465 U.S. 783 (1984) (citing Shaffer v. Heitner, 433 U.S. 186,
The court applies this analysis in considering whether it has personal jurisdiction over van
Bilderbeek and Ramirez.
Specific Personal Jurisdiction Analysis regarding van Bilderbeek
Plaintiff focuses on the Calder effects test in arguing that this court has personal
jurisdiction over van Bilderbeek. (Doc. # 125 at 14-21). Under Calder, a nonresident defendant
is subject to a court’s jurisdiction so long as his alleged conduct was “(1) intentional; (2) aimed
at the forum state; and (3) caused harm that the defendant should have anticipated would be
suffered in the forum state.” Licciardello v. Lovelady, 544 F.3d 1280, 1286 (11th Cir. 2008).
The test is used regularly in Alabama when determining whether a court has personal jurisdiction
over a nonresident. See, e.g., Duke v. Young, 496 So.2d 37 (Ala. 1986) (holding that defendants=
intentional and allegedly tortious actions were expressly aimed at Alabama); Shrout v. Thoren,
470 So.2d 1222 (Ala. 1985) (holding that defendant had acted aggressively to further a plan
which specifically contemplated the injury of an Alabama resident); Alfa Corp. v. Alfagres, S.A.,
385 F.Supp.2d 1230 (M.D. Ala. 2005) (holding that defendant knew it was committing a tort
against an Alabama entity and continued to do so anyway).
As set forth in detail above, Plaintiff has alleged that van Bilderbeek perpetrated
intentional, tortious and/or criminal acts that were intended to cause, and actually caused, injury
in Alabama. In particular, Plaintiff makes the following allegations in its Complaint:
Albert van Bilderbeek has (i) assisted the co-defendants in funneling money to witnesses
in Colombia which was sent by Albert van Bilderbeek to Ivan Otero, or his employees or
agents, in Colombia; (ii) assisted the co-defendants in obtaining false testimony against
Drummond, and did so with full knowledge that it would be submitted in court
proceedings in Alabama; (iii) entered into a contractual agreement with co-defendant
Collingsworth to pursue fraudulent claims against Drummond, a known Alabama
resident, relating to oil and gas rights in Colombia; (iv) participated in or directed
numerous phone calls, emails and other forms of communications with the other RICO
defendants and coconspirators in the United States for the purpose of planning and
carrying out their conspiracy and extortionate scheme; (v) participated in and orchestrated
media campaigns in Europe designed to fraudulently influence government officials and
the media for the purpose of extorting money from Drummond. Albert van Bilderbeek
committed his illegal and wrongful acts with the purposeful intent that the effects of his
acts be felt in the United States, and Alabama in particular, by Drummond, a known
Alabama resident. Albert van Bilderbeek’s co-conspirators and agents have also engaged
in wrongful and illegal acts in the United States and in Alabama. Albert van Bilderbeek
was aware of the effects in Alabama of those acts, which were for the benefit of van
Bilderbeek, and his co-conspirators and agents were working at the direction, under the
control, at the request, and/or on behalf of van Bilderbeek in committing those acts.
(Doc. # 1-1 at & 37).
Plaintiff has alleged, and cited to evidence of, intentional acts by van Bilderbeek directed
at Plaintiff, an Alabama resident. Where intentional acts are at issue, “‘the defendant may be held
to have expected its conduct to have an effect in that state, and further to have expected that the
victim will bring suit for redress there.’” Alfa Corp. v. Alfagres, S.A., 385 F. Supp. 2d 1230, 1235
(M.D. Ala. 2005) (quoting Coblentz v. General Motors Corp., 724 F.Supp. 1364 (M.D. Ala.
1989)). “‘[W]hen the origin of a deliberate, nonfortuitous tort is in one state, and the intended
injury to a recognized victim is in another state, the tortfeasor has affirmatively established
minimum contacts with the state in which the injury occurred, if the tortfeasor knew at the time it
committed the alleged tort that the victim would be injured in that state.’” Alfa Corp., 385 F.
Supp. 2d at 1235 (quoting Coblentz, 724 F.Supp. at 1369 (citing Calder v. Jones, 465 U.S. 783
(1984)). At least for Calder effects purposes, this rule applies equally to extraterritorial conduct
which is intended to cause injury in a particular state in the United States.
Van Bilderbeek is alleged to have intentionally paid witnesses for their testimony in a
case that was being litigated in Alabama and it is further alleged he intended to cause harm to an
Alabama business and this court (each located in Alabama). Licciardello, 544 F.3d at 1286; see
also Calder, 465 U.S. at 791 (Ajurisdiction over petitioners in California is proper because of
their intentional conduct in Florida calculated to cause injury to respondent in California). That
van Bilderbeek alleges that the payments were for a legitimate purpose is inconsequential, at
least at this stage. See Garrett v. Stanton, 2008 WL 4853388 at *2 (S.D. Ala. Nov. 7, 2008)
(“Defendants’ reasoning disregards the Rule 12(b) standard and would instead have the court
conjure facts from thin air to favor defendants= position, thereby bending over backwards to grant
their motion to dismiss.”).
The Complaint alleges that Collingsworth and van Bilderbeek discussed financing the
fraudulent litigation against Drummond, as well as a media campaign designed to disseminate
false allegations of Drummond’s complicity in human rights violations and mass murder
characterized as “objective facts.” (Doc. # 1-1 at & 158-59). The court agrees with Plaintiff that it
has sufficiently established purposeful availment under the Calder “effects test.” “‘Under the
“effects test,” a nonresident defendant's single tortious act can establish purposeful availment,
without regard to whether the defendant had any other contacts with the forum’ if the intentional
conduct has a direct impact on [an Alabama] resident.” Gubarev v. Buzzfeed, Inc., 2017 WL
2293550, at *7 (S.D. Fla. May 22, 2017) (citing Louis Vuitton Malletier, S.A. v. Mosseri, 736
F.3d 1339, 1356 (11th Cir. 2013)); see also Licciardello, 544 F.3d at 1285-88 (summarizing
cases employing Calder test and concluding that non-resident was subject to jurisdiction in
Florida because his out-of-state conduct was calculated to cause injury to a person in Florida).
Accordingly, van Bilderbeek cannot claim to be surprised that he has been haled into court in the
Northern District of Alabama. For these reasons, the exercise of personal jurisdiction over van
Bilderbeek in Alabama is reasonable, and his Motion to Dismiss (Doc. # 121) on this ground is
due to be denied.3
Because Plaintiff has established the relatedness and purposeful availment prongs of the
specific jurisdiction inquiry, the burden shifts to van Bilderbeek to present a “compelling case”
that the exercise of personal jurisdiction over him in Alabama would be unreasonable. See
Burger King Corp., 471 U.S. at 476-78. In considering this issue, the court must consider the
following factors: (1) the burden on the defendant, (2) the forum's interest in adjudicating the
dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, and (4) the judicial
system's interest in resolving the dispute. Lovelady, 544 F.3d at 1288. When litigation involves
international defendants, courts are to consider A[t]he unique burdens placed upon one who must
defend oneself in a foreign legal system.@ Asahi Metal Indust. Co., Ltd. v. Superior Court, 480
U.S. 102, 114 (1987). However, “it is only in highly unusual cases [where] that inconvenience
will rise to a level of a constitutional concern.@ Republic of Panama, 119 F.3d at 947 (citing
Because specific personal jurisdiction over van Bilderbeek is proper under the Calder test, the court need
not engage in a protracted inquiry into whether personal jurisdiction might be proper under the alternate theories of
conspiracy jurisdiction and Rule 4(k)(2) jurisdiction. Under the conspiracy theory of jurisdiction, “personal
jurisdiction can be exercised over a defendant who lacks minimum contacts to the forum state in the traditional sense
if a substantial connection exists between that forum and a conspiracy entered into by that defendant ... Alabama
courts have recognized and adopted the conspiracy theory of personal jurisdiction.” Matthews v. Brookstone Stores,
Inc., 469 F.Supp.2d 1056, 1066 (S.D. Ala. 2007). Under the Rule 4(k)(2) jurisdictional inquiry, the federal long arm
statute “authorizes the exercise of territorial jurisdiction over the person of any defendant against whom is made a
claim arising under federal law if that person is subject to personal jurisdiction in no state.” Advisory Committee
Notes to 1993 Amendments to Federal Rule of Civil Procedure 4(k)(2). In such cases, the rule “authorizes a district
court to aggregate a foreign defendant=s nationwide contacts to allow for service of process provided that two
conditions are met: (1) plaintiff=s claim must ‘arise under federal law,’ and (2) the exercise of jurisdiction must ‘be
consistent with the Constitution and laws of the United States.’” Oldfield, 558 F.3d at 1216.
Here, Drummond has alleged conspiracy and overt acts with particularity. Prof=l Locate v. Prime, Inc., 2007
WL 1624792 at *3 (S.D. Ala. June 4, 2007). (See Doc. # 1-1 && 37, 6-65, 200-05, 220-25). Drummond has also set
forth well-pleaded allegations as to van Bilderbeek’s=s contacts with the United States as a whole. (See Doc. # 1-1
&& 37, 63-65. 158-160). As such, the court alternatively concludes that Drummond has established jurisdiction over
van Bilderbeek under the theories of conspiracy and 4(k)(2) as well.
Asahi, 480 U.S. at 116 (Brennan, J., concurring in part and concurring in the judgment)).
Van Bilderbeek argues that he cannot be haled into court in Alabama because (1) he
conducts no business in the United States; (2) he has no relationship with Alabama whatsoever;
and (3) the only conspiracies in which van Bilderbeek is alleged to have participated took place
in Europe and Colombia. (Doc. # 121 at 12-14).
However, van Bilderbeek’s argument fails to acknowledge that Plaintiff has alleged that
his activities were “purposefully directed” at an Alabama resident and allegedly caused injuries
to a resident in this forum. See Licciardello, 544 F.3d at 1284. Therefore, van Bilderbeek had
“fair warning” that his activities could subject him to jurisdiction in Alabama. Finally, any issues
of burden (which, notably, have not been articulated by van Bilderbeek) are quickly ameliorated
because of modern technology. Chevron Corp. v. Donziger, 974 F. Supp.2d 362, 628 (S.D. N.Y.
2014) (AEven if forcing the defendant to litigate in a forum relatively distant from its home base
were found to be a burden, the argument would provide defendant only weak support, if any,
because the conveniences of modern communication and transportation ease what would have
been a serious burden only a few decades ago.@).
Nor has van Bilderbeek, a United States citizen (Doc. # 1-1 at & 37), shown that he faces
“especially onerous” burdens from litigating in this forum or that the inconvenience of litigating
in this forum rises to a “constitutional magnitude.” Diamond Crystal Brands, Inc. v. Food
Movers International, Inc., 593 F.3d 1249, 1274 (11th Cir. 2010). Indeed, van Bilderbeek has
provided little indication to the court of what specific burdens he faces from litigating in this
forum, and generalized statements that litigation in a particular forum is burdensome are typically
insufficient to show that the forum’s exercise of personal jurisdiction offends due process. See
Grail Semiconductor, Inc. v. Stern, 2012 WL 5903817, at *5 (S.D. Fla. Nov. 26, 2012).
Moreover, for at least two decades, our court of appeals has recognized that “modern methods of
transportation and communication have significantly ameliorated” the burdens that corporations
face when defending suits in states where they are not incorporated and do not have places of
business. See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 632 (11th Cir. 1996).
But even if that were not the case, Plaintiff’s interest in litigating here would nevertheless
outweigh any purported prejudice to van Bilderbeek. Plaintiff “is not required to travel to a
nonresident=s [country] of residence to obtain a remedy” because it was injured by the alleged
intentional misconduct of van Bilderbeek expressly aimed at it in Alabama. Licciardello, 544
F.3d at 1288 (citing Calder, 465 U.S. at 1487). And the state of Alabama “has a very strong
interest in affording its residents a forum to obtain relief from intentional misconduct of
nonresidents causing injury in [Alabama].” Licciardello, 544 F.3d at 1288. Finally, the judicial
interest in efficient resolution of this action is best served by the court’s exercise of personal
jurisdiction over van Bilderbeek in this action. See Olivier v. Merritt Dredging Co., 979 F.2d
827, 830, 834 (11th Cir. 1992) (concluding that multiple suits would waste judicial resources).
In conclusion, van Bilderbeek is subject to personal jurisdiction under the Calder effects
doctrine of personal jurisdiction, and this court’s exercise of personal jurisdiction over van
Bilderbeek comports with due process.
Specific Personal Jurisdiction Analysis regarding Ramirez
Plaintiff again focuses on the Calder effects test in arguing that this court has personal
jurisdiction over Ramirez. Ramirez argues that the “allegations lodged directly against [him] are
sparing,” and that he “is not mentioned once” in the Appendices of the Complaint “in which
Plaintiffs purport to set forth the predicate acts of the alleged RICO and RICO conspiracy
claims.” (Doc. # 122 at 2). This argument is, frankly, disingenuous. (See Section III(B) above).
The Complaint alleges, among other things, that Ramirez:
[C]ontracted with U.S. citizens Collingsworth and Conrad & Scherer whereby he
is promised a contingency fee in at least three U.S. civil cases pending in
Birmingham, Alabama, and has paid witnesses for testimony to be used in those
U.S. proceedings. In connection with those U.S. proceedings, he has appeared as
counsel during depositions in Birmingham, Alabama.
(Doc. 1-1 at & 15). Further,
Defendants [including Ramirez] began a multifaceted campaign to destroy
Drummond, and procure a fraudulent financial windfall, using, inter alia, three
fraudulent lawsuits [filed in Birmingham Alabama], media campaigns in the U.S.,
Colombia and Europe, and multiple unions and activist groups, to spread the false
message that Drummond was complicit with a terrorist organization in the
murders of hundreds of Colombians. In an effort to bolster these claims, the
Enterprise funneled hundreds of thousands of dollars to Colombian criminals,
their families, and their lawyers. Based on information uncovered to date, the
payments exceed $478,000.
(Doc. 1-1 at & 43).
That is, Ramirez is alleged to have been involved in bribing witnesses to provide false
testimony against Plaintiff, an Alabama resident, in lawsuits pending in Alabama, in which he
had a contract to receive a contingency fee. He is also alleged to have appeared in Birmingham,
Alabama at depositions related to those cases.
As discussed above, “‘[u]nder the “effects test,” even a nonresident defendant's single
tortious act can establish purposeful availment, without regard to whether the defendant had any
other contacts with the forum’ if the intentional conduct has a direct impact on [an Alabama]
resident.” Gubarev, 2017 WL 2293550, at *7 (citing Louis Vuitton Malletier, S.A., 736 F.3d at
1356; see also Licciardello, 544 F.3d at 1285-88. But, here, Ramirez is alleged to have been
involved in more than one tortious act directed at an Alabama resident and causing damage here.
Moreover, Ramirez’s due process concerns simply cannot be squared with the well-pled
facts: he is alleged to have held a contingency fee interest in cases litigated in Birmingham,
Alabama, and appeared at depositions in Birmingham, Alabama in those cases. Nor has he shown
that he faces “especially onerous” burdens from litigating in this forum or that the inconvenience
of litigating in this forum rises to a “constitutional magnitude.” Diamond Crystal Brands, Inc. v.
Food Movers International, Inc., 593 F.3d 1249, 1274 (11th Cir. 2010). Ramirez has previously
voluntarily participated in litigation in Alabama. Therefore, any such concerns are unwarranted.
Like Otero and van Bilderbeek, Ramirez cannot claim surprise at being haled into court in
the Northern District of Alabama. Therefore, Ramirez’s Motion to Dismiss (Doc. # 122) on this
ground is due to be denied.4
Service by E-Mail Was Proper
Van Bilderbeek and Ramirez also assert that service by e-mail on them was improper.
Rule 4(f) provides that “[u]nless federal law provides otherwise, an individual -- other than a
minor, an incompetent person, or a person whose waiver has been filed --may be served at a
place not within any judicial district of the United States:…. (3) by other means not prohibited by
international agreement, as the court orders.” Fed. R. Civ. P. 4(f). Alternative service under
Rule 4(f) is proper where the method of service is (1) not prohibited by international agreement,
and (2) is reasonably calculated to apprise the interested parties of the pendency of the action and
Again, the court need not address whether personal jurisdiction might be proper under the alternative
theories of conspiracy jurisdiction and Rule 4(k)(2) jurisdiction, although, for similar reasons to those discussed in
footnote 3, jurisdiction is also proper under those theories.
afford them an opportunity to present their objections. See U.S. Commodity Futures Trading
Comm'n v. Aliaga, 272 F.R.D. 617, 619 (S.D. Fla. 2011); Prewitt Enterprises, Inc. v.
Organization of Petroleum Exporting Countries, 353 F.3d 916, 927-28 (11th Cir. 2003). “[A]
proposed alternative method of service of process is not offensive to the forum’s law if such
method is not “expressly prohibited” by the forum's law. TracFone Wireless, Inc. v. Hernandez,
126 F. Supp. 3d 1357, 1365 (S.D. Fla. 2015) (citing TracFone Wireless, Inc. v. Distelec
Distribuciones Electronicas, S.A. de DV, 268 F.R.D. 687, 690–91 (S.D. Fla. 2010).
A court is afforded wide discretion in ordering service of process under Rule 4(f)(3). See
Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). Courts have
authorized a wide variety of alternative methods of service. See SEC v. Tome, 833 F.2d 1086,
1094 (2d Cir. 1987) (service of process by publication); Int'l Controls Corp. v. Vesco, 593 F.2d
166, 176-78 (2d Cir. 1979) (service by mail to last known address); New Eng. Merchs. Nat'l
Bank v. Iran Power Generation & Transmission Co., 495 F. Supp. 73, 80 (S.D.N.Y. 1980)
(service by telex for Iranian defendants); Levin v. Ruby Trading Corp., 248 F. Supp. 537, 541-44
(S.D.N.Y. 1965) (service by ordinary mail); Forum Fin. Group, LLC v. President & Fellows of
Harvard Coll., 199 F.R.D. 22, 23-24 (D. Me. 2001) (service on defendant's attorney); In re Int'l
Telemedia Assoc., 245 B.R. 713, 719-20 (Bankr. N.D. Ga. 2000) (service by email).
An order for alternative service must comply with due process requirements, which call
for notice that is “reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950). Where a defendant cannot be reached by mail, service of process via email may be
appropriate. Rio Properties, 284 F.3d at 1017-18. “E-mail service on defendants is not prohibited
by the Hague Convention or the law of the Netherlands.” McBride v. Wille, 2013 WL 12130463,
at *3 (W.D. Tex. Dec. 2, 2013) (citing Liberty Media Holdings, LLC v. March, 2011 WL
197838, at *1–2 (S.D. Cal. 2011)).
On September 1, 2016, Plaintiff filed a Motion for Entry of an Order Allowing
Alternative Methods of Service on Albert van Bilderbeek and Francisco Ramirez Cuellar. (Doc.
# 99). Prior to filing the Motion, Plaintiff had conducted discovery regarding van Bilderbeek’s
location. Plaintiff enlisted a private investigation firm in an attempt to locate van Bilderbeek, but
was unsuccessful. (Doc. # 99-12). In response to discovery requests, Defendant Collingsworth
responded that van Bilderbeek’s contact information was “highly confidential for security
reasons.” (Doc. # 99-4).
Van Bilderbeek argues that Plaintiff’s claims against him should be dismissed because
the court allowed him to be served by e-mail and the Hague Convention does not provide for
service by email. (Doc. # 121 at 15). However, that argument is simply off the mark. Numerous
federal courts, including district courts within this circuit, have found the lack of an express
prohibition on a type of service is dispositive. See Cartwright v. Fokker Aircraft U.S.A., Inc., 713
F. Supp. 389, 395 (N.D. Ga. 1988), disapproved of on other grounds by Vermeulen v. Renault,
U.S.A. Inc., 965 F.2d 1014 (11th Cir. 1992) (“Defendant has not pointed to any provision in the
internal law of The Netherlands which would suggest that service by mail violates a
deeply-rooted local policy of that nation; the mere fact that the internal laws of The Netherlands
make no provision for service of process by mail is insufficient to demonstrate that any use of the
mails for service is incompatible with the law of The Netherlands.”); see also Tracfone Wireless,
Inc., 126 F. Supp. 3d at, 1365 (“[T]his district has confirmed that a proposed alternative method
of service of process is not offensive to the forum’s law if such method is not ‘expressly
prohibited’ by the forum’s law.”).
Van Bilderbeek does not deny that he received a Summons and a copy of the Complaint
via e-mail. (See Doc. # 121). Nor does van Bilderbeek argue that this method of service failed to
apprise him of the allegations against him and afford him an opportunity to respond. (See Doc. #
121 at 14-16). It clearly did both C he has appeared in this action, retained able counsel, and
moved to dismiss the claims against him. Therefore, e-mail service on van Bilderbeek was
Ramirez, too, argues that service by e-mail was improper. He bases this argument on the
assertion that Colombia’s Code of Civil Procedure makes no mention of e-mail. (Doc. # 122 at
5). Plaintiff responds that the Code referred to by Ramirez has been repealed, and that the
General Procedure Code, which replaced it, expressly allows service by e-mail. (Doc. # 126 at 8).
Plaintiff provided the Declaration of a Colombian attorney attesting to this fact. (Doc. # 126-1).
In reply, Ramirez argues that Plaintiff did not comply with certain Colombian pre-requisites to
e-mail service. (Doc. # 129). However, like van Bilderbeek, Ramirez does not argue that this
method of service failed to apprise him of the allegations against him and afford him an
opportunity to respond. (See Doc. # 121 at 14-16). Again, it clearly did both C he has appeared in
this action, retained able counsel, and moved to dismiss the claims against him. Therefore, email
service on Ramirez was appropriate.
Because e-mail service on both van Bilderbeek and Ramirez was “reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action,” their
Motions to Dismiss on this issue are due to be denied. See Mullane, 339 U.S. at 314.
Plaintiff’s RICO Claims Apply Extraterritorially
Van Bilderbeek, but not Ramirez, makes the argument that Plaintiff’s RICO claims
should be dismissed because RICO does not apply extraterritorially. (Doc. # 121 at 17-18; Doc. #
122). In RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090, 2102 (2016), the Supreme
Court considered whether 18 U.S.C. § 1962 (the substantive RICO statute) applies to conduct
committed abroad. Section 1962 prohibits certain activities that are conducted through a pattern
of racketeering activity. See 18 U.S.C. § 1962(a)–(c). Section 1961 includes all of the possible
crimes, or “predicate acts,” that can constitute racketeering activity for the purposes of RICO. See
18 U.S.C. § 1961(1). The Supreme Court determined that, because some RICO predicates
“plainly apply to at least some foreign conduct,” Section 1962 was intended to apply and, so long
as a private RICO plaintiff alleges and proves a domestic injury to its business or property, does
apply to racketeering conduct abroad “to the extent that the predicates alleged in the particular
case themselves apply extraterritorially.” RJR Nabisco, Inc., 136 S.Ct. at 2102, 2106. The Court
concluded that “[t]his unique structure makes RICO the rare statute that clearly evidences
extraterritorial effect despite lacking an express statement of extraterritoriality.” Id. at 2103. That
is, “the domestic and extraterritorial reach of the RICO statute is coterminous with that of the
underlying predicate offenses in a given case.” United States v. Hawit, 2017 WL 663542, at *10
(E.D. N.Y. Feb. 17, 2017).
The Complaint alleges that van Bilderbeek paid Blanco on at least three separate
occasions for his testimony and participation in cases filed in Alabama. Based on those
allegations, it further asserts that “The Enterprise’s conduct with respect to Blanco violates 18
U.S.C. § 1343 (wire fraud), 18 U.S.C. § 201 (witness bribery), 18 U.S.C. § 1956(a)(2)(A)
(money laundering), 18 U.S.C. § 1503 (obstruction of justice), and 18 U.S.C. § 1512 (witness
tampering).” (Doc. # 1 at ¶ 107). The Complaint further alleges that the “adverse effects” of van
Bilderbeek’s witness bribery, witness tampering, money laundering, obstruction of justice and
wire fraud were felt by Plaintiff here in Alabama, and asserts a domestic injury. (Doc. # 1 at ¶¶
107, 164-70). Therefore, RICO may apply extraterritorially, depending on the underlying
All of the predicate offenses for Plaintiff’s RICO claims have extraterritorial application.
“Congress expressly provided for extraterritorial application of jurisdiction in the obstruction of
justice statute.” United States v. Bocachica, 57 F. Supp. 3d 630, 632 (E.D. Va. 2014) (citing 18
U.S.C. § 1512(c)). Section 1512(h) states that “[t]here is extraterritorial Federal jurisdiction over
an offense under this section.” 18 U.S.C. § 1512(h). See also United States v. DSD Shipping,
A.S., 2015 WL 5444094, at *5 (S.D. Ala. Sept. 15, 2015) (“[T]he obstruction statutes, 18 U.S.C.
§§ 1505 and 1519, apply extraterritorially because such foreign offenses cause domestic harm
and are not logically dependent on their locality.”). The money laundering statute also
specifically provides for extraterritorial application where the alleged conduct is by a United
States citizen. 18 U.S.C. § 1956(f) (“There is extraterritorial jurisdiction over the conduct
prohibited by this section if -- (1) the conduct is by a United States citizen.”). The Complaint
alleges that van Bilderbeek is a United States citizen. (Doc. # 1 at & 37). Although his affidavit
addresses his residence, it does not contradict the allegation regarding his citizenship. (Doc. #
121-1). There is authority for the proposition that the witness bribery statute applies
extraterritorially. Cockerham v. Willis, 2016 WL 345590, at *4 (W.D. Tex. Jan. 27, 2016), aff'd,
671 F. App'x 348 (5th Cir. 2016) (18 U.S.C. § 201 has extraterritorial reach). And, as to the
extraterritorial application of the wire fraud statute,
While the Second Circuit has held that 18 U.S.C. § 1343 does not have
extraterritorial application, European Cmty. v. RJR Nabisco, Inc.(RJR Nabsico,
Inc. 2d Cir.), 764 F.3d 129, 140–41 (2d Cir. 2014) (finding the wire fraud statute
does not overcome the presumption against extraterritoriality), rev'd on other
grounds, RJR Nabisco, Inc., ––– U.S. ––––, 136 S.Ct. 2090, 195 L.Ed.2d 476,
other courts have held to the contrary, see United States v. Georgiou, 777 F.3d
125, 137–38 (3d Cir. 2015); United States v. Lyons, 740 F.3d 702, 718 (1st Cir.
2014),  it does not appear that the Eleventh Circuit has opined on the issue.
Absolute Activist Value Master Fund Ltd. v. Devine, 2017 WL 519066, at *19 (M.D. Fla. Feb. 8,
2017). The First and Third Circuits have specifically held that “Section 1343 applies
extraterritorially.” Georgiou, 777 F.3d at 137, cert. denied, 136 S. Ct. 401 (2015); see also
Lyons, 740 F.3d 702, 718 (“the wire fraud statute punishes frauds executed in ‘interstate or
foreign commerce,’” and therefore can be applied extraterritorially because Congress did not
have “only ‘domestic concerns in mind.’”) (quoting Pasquantino v. United States, 544 U.S. 349,
371–72 (2005), in turn quoting 18 U.S.C. § 1343). The court concludes that the First and Third
Circuits have the better side of the debate. Therefore, van Bilderbeek’s argument that Plaintiff’s
RICO claim fails due to its extraterritorial application is without merit.
The RICO Claim Against Ramirez is Appropriately Pled
Ramirez, but not van Bilderbeek makes the argument that Plaintiff’s RICO claims are due
to be dismissed as conclusory and insufficiently pled. The court disagrees. In the Complaint,
Ramirez is defined as one of the “RICO Defendants” and a member of the “RICO Enterprise.”
(Doc. # 1-1 at 2). The Complaint further alleges that the Enterprise (which includes Ramirez)
made witness payments to Charris which were sent “from a place in the United States to or
through a place outside the United States . . . with the intent to promote the carrying on of
specified unlawful activity” C namely, witness bribery, witness tampering, obstruction of justice,
and wire fraud. (Doc. # 1-1 at 38-42, 107-125). Ramirez is also alleged to have facilitated
virtually all of the witness payments. (Doc. # 1-1 at 38-43). The Complaint further alleges that
Ramirez was active in disseminating the Enterprise’s false message and fraudulent testimony.
(Doc. # 1-1 at 80, 86).
The court understands that certain RICO claims must be pled with particularity, but
Plaintiff has done that here. As explained at length in the court’s March 8, 2016 Memorandum
Opinion and Order (Doc. #58), and also in the court’s August 12, 2016 Memorandum Opinion
and Order (Doc. #91), predicate acts of mail and wire fraud are prohibited acts under RICO
which must be pled with particularity. (Doc. #58 at 8-9). Other predicate acts, such as bribery,
obstruction of justice, witness tampering, and money laundering need only meet the
Iqbal/Twombly standard of pleading. (Doc. #58 at 6). Applying these standards here, the court
concludes Plaintiff has successfully (and with particularity) stated a claim against Ramirez.
(See, e.g. Doc. # 1-1 at 28-30, 55-59, 76-77, 86).
For these reasons, as well as those stated in the Memorandum Opinion and Order (Doc.
#58) of March 8, 2016, and the Memorandum Opinion and Order (Doc. # 91), the Motions to
Dismiss Plaintiff’s RICO claims filed by Van Bilderbeek and Ramirez are due to be denied.
Plaintiff’s State Law Fraud Claims
In its Complaint, Plaintiff asserts two fraud claims: Count III, a willful and/or reckless
misrepresentation claim, and Count IV, a fraudulent concealment/suppression claim. (Doc. 1-1 at
100-01). Van Bilderbeek and Ramirez argue that Plaintiff has failed to plausibly allege these
claims against them. The elements of the two fraud claims differ and are addressed, in turn,
Misrepresentation Fraud Claim
The elements of a misrepresentation fraud claim are: “(1) a false representation; (2)
concerning a material fact; (3) reliance upon the false representation, and; (4) damage as a
proximate result.” Aliant Bank, a Div. of USAmeribank v. Four Star Investments, Inc., 2017 WL
1787935, at *18 (Ala. May 5, 2017) (quoting Harmon v. Motors Insurance Corp., 493 So.2d
1370, 1373 (Ala. 1986)). “[R]eliance is an essential part of any fraud claim.” Aliant Bank, 2017
WL 1787935, at *18. “‘Although the terminology varies from state to state, the underlying
principle is the same — for a plaintiff to state a fraud claim, he must show that a
misrepresentation induced him to act in a way that he would not otherwise have acted, that is,
that he took a different course of action because of the misrepresentation.’” Aliant Bank, 2017
WL 1787935, at *19 (quoting Hunt Petroleum Corp. v. State, 901 So.2d 1, 4–5 (Ala. 2004)).
Although Plaintiff has properly alleged misrepresentations made by van Bilderbeek and
Ramirez, the court agrees with these Defendants that Plaintiff has failed to properly allege facts
supporting the reliance element of the claim. Plaintiff alleges that these Defendants made
misrepresentations about it and that it was damaged as a result. But Plaintiff has not sufficiently
alleged that it took any action or changed its course in reliance on the misrepresentations. Nor
could it have done so because its position is that it knew all along the misrepresentations were
false. Without the reliance element, Plaintiff’s misrepresentation claim is essentially a
repackaged defamation claim. Therefore, Plaintiff’s misrepresentation claims against van
Bilderbeek and Ramirez are due to be granted.
Suppression Fraud Claim
“The elements of a suppression claim[under Alabama Code § 6-5-102] are (1) a duty on
the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by
the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her
injury.” Aliant Bank, 2017 WL 1787935, at *23 (internal quotations omitted but quoting
Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So.2d 883, 891 (Ala. 2005) and in
turn quoting Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala. 1996)).
Defendants van Bilderbeek and Ramirez argue that Plaintiff has not properly alleged any
duty to speak on their part. (Docs. # 121 at 19-20 and # 122 at 7). Plaintiff responds that, by
electing to speak on a topic, Defendants undertook a duty to do so truthfully. (Docs. # 126 at 24
and 125 at 30). The court agrees with Plaintiff on this point:
[E]ven though one is under no obligation to speak as to a matter, if he undertakes
to do so, either voluntarily or in response to inquiry, he is bound not only to state
the truth but also not to suppress or conceal any facts within his knowledge which
will materially qualify those stated; if he speaks at all, he must make a full and fair
disclosure.” . . . Thus, once a party elects to speak, he or she assumes a duty not to
suppress or conceal those facts that materially qualify the facts already stated.
Freightliner, 932 So. 2d at 895. See also First Alabama Bank of Montgomery, N.A. v. First State
Ins. Co., 899 F.2d 1045, 1056 (11th Cir. 1990) (“Finally, even if one is not under a duty to speak,
if he decides to do so, ‘he must make a full and fair disclosure,’ without concealing any facts
within his knowledge.” (quoting Ellis v. Zuck, 409 F.Supp. 1151, 1158 (N.D. Ala. 1976), and
citing Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975))).
Van Bilderbeek and Ramirez are both alleged to have disseminated the RICO
Enterprise’s message that Plaintiff was complicit in murder to the media and government
officials in the Netherlands. Neither Defendant had any duty to speak on this issue, but once they
chose to speak, they assumed a duty to speak truthfully. Freightliner, 932 So. 2d at 895.
Therefore, Plaintiff has sufficiently alleged a duty to speak truthfully on the part of both van
Bilderbeek and Ramirez.
However, Plaintiff’s concealment/suppression claims suffer from the same infirmity as its
misrepresentation claims C Plaintiff has failed to allege that it was induced to act by any
suppression or concealment, or that it acted to its injury because of any suppression or
concealment. Again, Plaintiff could not have acted on the suppressed information to its detriment
because its position is that it knew the concealed truth. Plaintiff cannot establish the inducement
to act element, and therefore its concealment/suppression claims fail, and the Motions to Dismiss
the concealment/suppression claims are due to be granted.
For the foregoing reasons, the Motions to Dismiss filed by Defendants Albert van
Bilderbeek and Francisco Ramirez Cuellar (Docs.# 121 and 122) are due to be granted in part
and denied in part. A separate order will be entered.
DONE and ORDERED this August 1, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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