Belevich v. Thomas et al

Filing 35

MEMORANDUM OPINION AND ORDER the Plaintiff's 29 motion to dismiss the Defendants' amended counterclaims is GRANTED. Accordingly, the Defendants' 33 amended counterclaims 56-60 are DISMISSED WITHOUT PREJUDICE. Signed by Judge Abdul K Kallon on 11/7/2018. (AFS)

FILED
2018 Nov-07 AM 09:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VALENTIN BELEVICH,
Plaintiff,

v.
KLAVDIA THOMAS and
TATIANA KUZNITSNYNA,
Defendants.

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Civil Action Number
2:17-cv-1193-AKK

MEMORANDUM OPINION AND ORDER
Valentin Belevich brings this action against Klavdia Thomas and Tatiana
Kuznitsnyna (“the Defendants”) under the Immigration and Nationality Act, 8
U.S.C. §§ 1101 et seq. (“INA”) for breach of contract and intentional infliction of
emotional distress. Doc. 1. The Defendants have asserted counterclaims of
extortion, misrepresentation, fraud, and conversion. Docs. 23, 25. Belevich has
moved to dismiss these counterclaims for failure to state a claim on which relief
can be granted, doc. 29, and the motion is ripe for review. For the reasons stated
more fully below, the motion is due to be granted.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
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allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). By contrast with Rule 8(a)’s
fairly liberal pleading standard, Federal Rule of Civil Procedure 9(b) requires a
party to “state with particularity the circumstances constituting fraud or mistake.”
This means the claimant must allege: “(1) the precise statements, documents, or
misrepresentations made; (2) the time, place, and person responsible for the
statement; (3) the content and manner in which these statements misled the
[claimants]; and (4) what the [opposing party] gained by the alleged fraud.”
American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010)
(citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81
(11th Cir. 1997)).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a claim or
counterclaim when a pleading fails to state a claim upon which relief can be
granted. To survive a motion to dismiss counterclaims, the pleadings “must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Iqbal, 556 U.S. at 678 (citations and internal quotation marks
omitted); see, e.g., Geter v. Galardi South Enterprises, 43 F. Supp. 3d 1322, 1325
(S.D. Fla. 2014) (“A motion to dismiss a counterclaim pursuant to Federal Rule of
Civil Procedure 12(b)(6) is evaluated in the same manner as a motion to dismiss a
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complaint.”); Johnson Outdoors Inc. v. Navico, Inc., 774 F. Supp. 2d 1191, 1195
(M.D. Ala. 2011) (applying Iqbal standard to examine a motion to dismiss
counterclaims). A claim is facially plausible when the claimant pleads “factual
content that allows the court to draw the reasonable inference that the [opposing
party] is liable for the misconduct alleged.” Id. (citation omitted). The allegations
must establish “more than a sheer possibility” that the opposing party acted
unlawfully. Iqbal, 556 U.S. at 678; see Bell Atl. Corp., 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”).
Ultimately, this inquiry is a “context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
II. FACTUAL BACKGROUND
Belevich, a Russian citizen and legal permanent resident of the United
States, filed this action against his wife Kuznitsnyna and Kuznitsnyna’s daughter,
Thomas. Docs. 25 ¶¶ 1-8; 1 ¶¶ 1-8. Kuznitsnyna and Thomas, both of whom are
United States citizens, jointly sponsored Belevich’s immigration to the United
States by co-signing and filing an I-864 Affidavit of Support on his behalf pursuant
to § 213 of the INA, 8 U.S.C. § 1183a. Docs. 25 ¶¶ 18-20; 1 ¶¶ 18-20. An affidavit
of support is “executed by a sponsor of the alien as a contract . . . in which the
sponsor agrees to provide support to maintain the sponsored alien at an annual
income that is not less than 125 percent of the Federal poverty level during the

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period in which the affidavit is enforceable.” 8 U.S.C. § 1183a(a)(1)(A). Notably,
the affidavit does not terminate on divorce, docs. 33 ¶ 12; 1 ¶ 12, and it lasts until
the alien becomes a naturalized citizen or “has worked 40 qualifying quarters of
coverage as defined under title II of the Social Security Act.” 8 U.S.C. §
1183a(a)(2)–(3).
The Department of Homeland Security ultimately granted Belevich a visa
that allowed him to immigrate to Alabama in 2012. Docs. 25 ¶¶ 6, 20; 1 ¶¶ 6, 20.
Once in Alabama, Belevich worked various jobs, including a full-time position as
an auto mechanic, and contributed to his and Kuznitsnyna’s finances until late
2014. Docs. 25 ¶¶ 24-25; 1 ¶¶ 24-25. Subsequently, Kuznitsnyna filed for divorce
and obtained a protection from abuse order against Belevich. Doc. 6 at 2.
In the present action, Belevich claims that the Defendants have breached
their contractual obligations under the I-864 Affidavit of Support and requests
specific performance, compensatory damages, and damages for intentional
infliction of emotional distress. Doc. 1 at 7-9. In support of his claims, Belevich
makes several contested factual allegations: (1) that, in late 2014, he suffered a
heart attack and subsequently lost his job as an auto mechanic. Id. ¶ 26; (2) that,
shortly after losing his job, he temporarily traveled to Russia to care for his ailing
mother. Id. ¶ 28; and (3) that Thomas sought to prevent Belevich’s return to the
United States by cancelling his credit card, cell phone, and return ticket, and that
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Thomas also emptied his retirement accounts and liquidated his remaining Russian
assets without his knowledge. Id. ¶ 29. These events purportedly caused Belevich
to suffer a second heart attack. Id. ¶ 30. Allegedly relying on borrowed money,
Belevich purchased a ticket and returned to the United States in October 2015. Id.
¶ 32. However, since his return, Kuznitsnyna has refused to let Belevich return to
their home or to retrieve his personal property, and the Defendants have not
fulfilled their obligations under the I-864 Affidavit of Support, forcing Belevich to
rely on government benefits and charity. Id. ¶¶ 33-38.
In their answer and amended answer, the Defendants assert counterclaims
for extortion, misrepresentation, fraud, and conversion. Docs. 23, 25. Basically, the
Defendants allege that Belevich: (1) threatened Kuznitsnyna that, unless she paid
him $10,000, he would attempt to enforce or otherwise use the I-864 Affidavit of
Support against her and Thomas. Doc. 25 ¶ 56; (2) falsely represented to the
Defendants that he had suffered a heart attack, in order to obtain money from
Thomas and as part of his plan to dissolve his marriage with Kuznitsnyna. Id. ¶ 57;
and (3) knowingly and falsely represented to U.S. Customs and Border Patrol on
his return from Russia in 2015 that he was domiciled in the United States, and
purportedly did so to prevent the agency from concluding that he had abandoned
his status as a legal permanent resident and to enable his return to the United States
to enforce the I-864 Affidavit of Support. Id. ¶¶ 58-59. Presently before the court is
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Belevich’s motion to dismiss the counterclaims for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). Doc. 29.
III. ANALYSIS
The court must determine initially whether to grant the Defendants leave to
amend their answer a second time. Rule 15 only permits a party one opportunity to
amend a pleading as a matter of course. See Fed. R. Civ. P. 15(a)(1) (“A party may
amend its pleading once as a matter of course . . .”); Logue v. Patient First Corp.,
246 F. Supp. 3d 1124, 1126-27 (D. Md. 2017) (“[O]nly one opportunity is afforded
by Rule 15 to amend any pleading as a matter of course.” (emphasis in original)).
Consequently, the Defendants are required to obtain either Belevich’s written
consent or leave to amend their answer a second time, see Fed. R. Civ. P. 15(a)(2),
which the Defendants failed to do. Here, however, the second amended answer
would only add the word “falsely” to the Defendants’ first misrepresentation claim
and correct minor grammatical errors and omissions in their initial counterclaims,
doc. 33 at 5-6. Therefore, the court will allow the amendment.
Turning now to the motion to dismiss, in their second amended answer, doc.
33, the Defendants allege five counterclaims against Belevich: extortion, two
claims of misrepresentation, fraud, and conversion. Belevich contends that each
claim fails to state a claim on which relief can be granted. The court agrees.

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A. Extortion
Belevich challenges the extortion counterclaim, contending that Alabama
does not recognize a civil action for extortion and, alternatively, that his alleged
conduct does not constitute extortion under Alabama or federal law. The court
agrees with the alternate contention—specifically, although Alabama Code § 6-5370 permits a claimant to commence a civil action, absent prosecution, “[f]or any
injury, either to person or property, amounting to a felony,” see Preskitt v. Lyons,
865 So. 2d 424, 428-29 (Ala. 2003) (quoting Ala. Code § 6-5-370), the claim
requires the showing of an injury equivalent to the felony of extortion. In other
words, to plead a proper claim for extortion requires, as defined in the Alabama
Code, that the defendant “knowingly obtain[ed] by threat control over the property
of another, with intent to deprive him of the property.” Ala. Code §§ 13A-8-13;
13A-8-14; 13A-8-15.1 Here, however, the Defendants have failed to allege any
facts indicating that Belevich “obtained . . . control” over Kuznitsnyna’s or
Thomas’ money or property, a necessary element of felony extortion under
Alabama law. See doc. 33 ¶ 56; Feldman v. American Dawn, Inc., 849 F.3d 1333,
1

The Alabama Criminal Code distinguishes between first- and seconddegree extortion. Ala. Code §§ 13A-8-14; 13A-8-15. Attempted extortion in the
first degree—which requires a threat to cause physical harm to, or physical
confinement or restraint of, another person—is also classified as a felony. See id.
§§ 13A-4-2; 13A-8-1(14)(a), (c); 13A-8-14; Preskitt, 865 So.2d at 429-30.
However, the Defendants have not alleged that Belevich attempted to threaten to
cause physical harm, confine, or restrain another person, and thus they have not
stated an injury equivalent to first-degree attempted extortion. See doc. 33 ¶ 56.
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1339 (11th Cir. 2017) (“[A party] must plausibly allege all the elements of the
claim for relief.”). As such, their state law extortion claim fails.
Similarly, their federal claim fails as well. Under the Hobbs Act, the federal
statute criminalizing extortion, a conviction requires proof of both extortion and
interference with interstate commerce. See United States v. Bornscheuer, 563 F.3d
1228, 1236 (11th Cir. 2009) (citing 18 U.S.C. § 1951(a)). Extortion is defined as
“the obtaining of property from another, with his consent, induced by wrongful use
of actual or threatened force, violence, or fear, or under color of official right.” 18
U.S.C. § 1951(b)(2). The Defendants have not alleged any facts that state an injury
equivalent to a felony under federal law or any interference with interstate
commerce. Moreover, because a “bad-faith threat to sue,” by itself, cannot
constitute the requisite “wrongful” act under the Hobbs Act, the Defendants’
allegation that Belevich threatened to “use . . . or attempt to enforce” the I-864
Affidavit of Support is insufficient to allege extortion. See United States v.
Pendergraft, 297 F.3d 1198, 1205-07 (11th Cir. 2002) (finding that defendants’
threat to litigate was not “wrongful” under the Hobbs Act even though they had no
lawful claim to the money at issue and had filed false affidavits); doc. 33 ¶ 56. In
short, the Defendants’ allegations do not state a plausible claim for extortion or any
other cognizable claim.

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B. Misrepresentation I
Belevich also contends that the Defendants’ first misrepresentation claim,
doc. 33 ¶ 57, fails to satisfy the pleading standards of Rules 8(a) and 9(b). Under
Alabama law, a misrepresentation claim consists of: “1) a misrepresentation of
material fact, 2) made willfully to deceive, recklessly, without knowledge, or
mistakenly, 3) which was reasonably relied on by the plaintiff under the
circumstances, and 4) which caused damage as a proximate consequence.” Bryant
Bank v. Talmage Kirkland & Co., 155 So. 3d 231, 238 (Ala. 2014). The
misrepresentation claim must also satisfy the particularity requirements of Rule
9(b). See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.”). 2 This means that
the

claim

must

allege:

“(1)

the

precise

statements,

documents,

or

misrepresentations made; (2) the time, place, and person responsible for the

2

Although the Defendants plead some of their claims as misrepresentation
rather than fraud, see doc. 33 ¶¶ 57-58, Alabama statutory law indicates that all
misrepresentation claims are claims of “legal fraud.” See Ala. Code § 6-5-101
(“Misrepresentations of a material fact made willfully to deceive, or recklessly
without knowledge, and acted on by the opposite party, or if made by mistake and
innocently and acted on by the opposite party, constitute legal fraud.”). Moreover,
the Defendants allege that Belevich made intentionally false representations. See
doc. 33 ¶¶ 57, 58. Accordingly, the Defendants’ misrepresentation claims must
satisfy Rule 9(b)’s particularity requirements for fraud. See Lamm v. State St. Bank
& Tr., 749 F.3d 938, 951 (11th Cir. 2014) (holding that Rule 9(b) applied to
negligent misrepresentation claims because such claims sounded in fraud under
Florida law); Bodie v. Purdue Pharma Co., 236 F. App’x 511, 524 (11th Cir. 2007)
(noting that a plaintiff alleging fraud or misrepresentation must satisfy Rule 9(b)).
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statement; (3) the content and manner in which these statements misled the
[claimants]; and (4) what the [opposing party] gained by the alleged fraud.” Cigna
Corp., 605 F.3d at 1291 (citation omitted). “This Rule ‘serves an important
purpose in fraud actions by alerting [opposing parties] to the precise misconduct
with which they are charged’ and protecting [opposing parties] ‘against spurious
charges of immoral and fraudulent behavior.’” Brooks, 116 F.3d at 1370-71
(citations omitted).
The first misrepresentation claim alleges that Belevich intentionally
misrepresented that he had experienced a heart attack in order to obtain an
unspecified amount of money from Defendant Thomas. See doc. 33 ¶ 57. The
Defendants

have

not,

however,

articulated

the

precise

statement

or

misrepresentation that Belevich allegedly made, or when, where, or how Belevich
made this misrepresentation and what money Thomas gave Belevich in connection
with his misrepresentation. See Mizzaro, 544 F.3d at 1237 (finding that Rule 9(b)
requires pleading “the who, what, when, where, and how of the allegedly false
statements . . .”); Pucci v. Carnival Corp., 146 F. Supp. 3d 1281, 1290-91 (S.D.
Fla.

2015)

(finding

plaintiffs’

allegations

that

cruise

company

made

misrepresentations through marketing materials and employee statements, without
identifying exactly when these misrepresentations occurred, lacked sufficient
“temporal precision” under Rule 9(b)). Furthermore, given that the complaint
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pleads that Belevich suffered two separate heart attacks, doc. 1 ¶¶ 26, 30, both of
which the Defendants dispute, doc. 33 ¶¶ 26, 30, it is unclear whether the
Defendants’ sparse allegations refer to events pertaining to one or both of the
alleged heart attacks. In the absence of the particular circumstances of this claim,
the Defendants’ allegations fall short of the heightened pleading requirements of
Rule 9(b), and fail to state a claim that is plausible. See Brooks, 116 F.3d at 137071 (“Rule 9(b) must be read in conjunction with Rule 8(a) . . .”).
C. Misrepresentation II and Fraud
Belevich also contends that the Defendants’ second misrepresentation claim,
doc. 33 ¶ 58, and fraud claim, doc. 33 ¶ 59, fail to satisfy Rule 8(a)’s plausibility
standard and Rule 9(b)’s particularity requirements. 3 This claim is based on the
Defendants’ contention that Belevich purportedly lied to Customs and Border
Patrol when he represented on his return after traveling to Russia, allegedly to visit
his sick mother, that he is domiciled in the U.S. See doc. 33 ¶¶ 58-59; doc. 1 ¶¶ 2833. Based on Belevich’s complaint, the undersigned is skeptical of the Defendants’
3

Under Alabama law, a “fraud claim” appears to consist of essentially the
same elements as a claim of intentional or reckless misrepresentation. See, e.g.,
Patten v. Alfa Mut. Ins. Co., 670 So. 2d 854, 856 (Ala. 1995) (“The essential
elements of a fraud claim are: (1) misrepresentation of a material fact; (2) made
willfully to deceive, or recklessly without knowledge; (3) which was justifiably
relied upon by the plaintiff under the circumstances; and (4) which caused damage
as a proximate consequence.” (citation omitted)). Moreover, the Defendants’
second misrepresentation claim and fraud claim are based on the same factual
allegations. See doc. 33 ¶¶ 58-59; doc. 34 at 4. Accordingly, the court analyzes the
Defendants’ second misrepresentation and fraud claims together.
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allegation that Belevich knowingly and intentionally made a misrepresentation
about his domicile, given that his alleged reason for traveling to Russia was to visit
his mother, rather than to permanently move back. In any event, the Defendants
have not articulated how Belevich even made this misrepresentation to Customs
and Border Patrol or why his statement is false.
Second, the Defendants have not adequately alleged under Rules 9(b) and
8(a) how this misrepresentation harmed them, except to state that Belevich’s
purported misrepresentation about his domicile enabled him to enter the U.S. so
that he could enforce the I-864 affidavit of support. Doc. 33 ¶¶ 58-59. But
Belevich’s trip to Russia did not absolve the Defendants’ of their support
obligations. Under federal immigration regulations, Thomas’ support obligations
under the I-864 terminate if Belevich “ceases to hold the status of an alien lawfully
admitted for permanent residence and departs the United States.” 8 C.F.R. §
213a.2(e)(2)(i)(C); Erler v. Erler, 824 F.3d 1173, 1176-77 (9th Cir. 2016) (listing
the five ways in which I-864 obligations terminate). Critically, “if the sponsored
immigrant has not abandoned permanent resident status, executing the form
designated by USCIS for recording such action [sic] this provision will apply only
if the sponsored immigrant is found in a removal proceeding to have abandoned
that status while abroad.” 8 C.F.R. § 213a.2(e)(2)(i)(C) (emphasis added). The
Defendants have not alleged that Belevich executed any USCIS-designated form
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abandoning his permanent resident status, that there was a removal proceeding
initiated against Belevich, or that USCIS had issued a finding that Belevich had
abandoned his status while in Russia.4 Consequently, based on these pleadings, it
is not clear how Belevich’s statement as to his domicile is even a misrepresentation
or how it could have harmed the Defendants.
D. Conversion
Finally, Belevich contends that the Defendants have failed to plausibly
allege the elements of a conversion claim. Doc. 29 at 4-5. See Ex Parte Talbott,
215 So. 3d 541, 549 (Ala. 2015) (citation omitted) (requiring that a claimant must
show “a wrongful taking or a wrongful detention or interference or an illegal use or
misuse of his or her property.”). The Defendants allege that Belevich obtained
“monies, services, and other economic benefits” from the Defendants by
implementing a “plan to force dissolution of [his] marriage” to Kuznitsnyna. Doc.
33 ¶ 60. These allegations, without more, do not state any action by Belevich that
amounts to the “wrongful exercise of dominion over” or “illegal misuse” of the
Defendants’ property required for a claim of conversion.5 See Horne v. TGM

4

Indeed, the Defendants admit in their amended answer that Belevich “is a
legal permanent resident of the United States . . .” Doc. 33 ¶ 6; doc. 1 ¶ 6.
5
The Defendants contend in their responsive brief that the alleged
conversion is Belevich’s “illegal misuse” of the I-864 Affidavit of Support by
attempting to cause the dissolution of his marriage to Kuznitsnyna, by lying about
his heart attack, and by committing fraud while entering the United States. Doc. 34
at 5. However, this attempt to shoehorn factual and conclusory allegations from the
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Associates, L.P., 56 So. 3d 615 (Ala. 2010) (citation omitted) (emphasis in
original) (“The gist of [conversion] is the wrongful exercise of dominion over
property in exclusion or defiance of a plaintiff’s rights . . .”); Martin v. Luckie &
Forney, Inc., 549 So. 2d 18, 19 (Ala. 1989) (“[T]he bare possession of property
without some wrongful act in the acquisition of possession, or its detention, and
without illegal assumption of ownership or illegal user or misuser, is not
conversion.”). Moreover, the Defendants fail to identify any specific property that
Belevich wrongfully acquired or converted. See Schaeffer v. Poellnitz, 154 So. 3d
979, 988 (Ala. 2014) (citation omitted) (noting that the “converted” property must
be “specific personal property . . . to which, at the time of the conversion, the
[claimant] had a general or specific title and of which the [claimant] was in actual
possession or to which he was entitled to immediate possession”); Newson v.
Protective Industrial Ins. Co. of Alabama, 890 So. 2d 81, 88 (Ala. 2003)
(“Generally, an action for conversion of money will not lie unless the money is
specific and capable of identification.” (internal quotations and citation omitted)).

preceding counts for misrepresentation and fraud into an additional claim of
conversion exemplifies a form of “shotgun pleading” that is insufficient to state a
claim. See Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1320-23
(11th Cir. 2015) (“The most common type [of shotgun pleading] . . . is a complaint
containing multiple counts where each count adopts the allegations of all preceding
counts, causing each successive count to carry all that came before and the last
count to be a combination of the entire complaint.”).
14

Consequently, the Defendants’ sparse factual allegations fail to plausibly state a
claim for conversion.
IV. CONCLUSION AND ORDER
In sum, the Defendants have failed to state a counterclaim on which relief is
plausible, and Belevich’s motion to dismiss the Defendants’ amended
counterclaims, doc. 29, is GRANTED. Accordingly, the Defendants’ amended
counterclaims, doc. 33 ¶¶ 56-60, are DISMISSED WITHOUT PREJUDICE.
DONE the 7th day of November, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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