Rismed Oncology Systems, Inc. v. Baron et al

Filing 24

MEMORANDUM OPINION AND ORDER that plaintiff's motion for relief from judgment is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/7/2014. (AHI )

FILED
2014 Mar-07 PM 02:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RISMED
ONCOLOGY
SYSTEMS, INC.,
Plaintiff,
vs.
DANIEL ESGARDO RANGEL
BARON; ISABEL RANGEL
BARON; RISMED DIALYSIS
SYSTEMS, CORP. (Alabama);
RISMED DIALYSIS SYSTEMS,
CORP. (Florida); and RISMED
DIALYSIS SYSTEMS, C.A.
VENEZUELA,
Defendants.

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Civil Action No. CV-13-S-310-NE

MEMORANDUM OPINION AND ORDER
This action is before the court on a motion for relief from judgment filed by
plaintiff, Rismed Oncology Systems, Inc., pursuant to Federal Rules of Civil
Procedure 60(b)(3) and 60(b)(6).1 Plaintiff commenced this action on February 14,
2013, asserting claims against:

Daniel Esgardo Rangel-Baron, a citizen of

Venezuela; Isabel Rangel-Baron, also a citizen of Venezuela; Rismed Dialysis
Systems, C.A., a Venezuelan corporation; Rismed Dialysis Systems, Corp.
(Alabama), an Alabama corporation; and, Rismed Dialysis Systems, Corp. (Florida),
1

See doc. no. 7 (Plaintiff’s Motion for Relief).

a Florida corporation. Jurisdiction existed under the federal question statute, 28
U.S.C. § 1332, because the first three Counts of the complaint alleged claims based
upon the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(a), (c), and (d).2 In addition, supplemental state-law claims of fraud and
conspiracy to defraud, as well as mail and wire fraud under Alabama Code § 6-5-370,
were asserted in Counts IV and V.3
Less than two months after commencing the action, however, and before any
defendant had filed an answer or other responsive pleading, plaintiff moved to
dismiss the case with prejudice, stating as the reason for doing so that “a settlement
has been reached in this action.”4 An order dismissing the action with prejudice was
2

The attorneys who represented plaintiff at the commencement of this suit represented that
jurisdiction also existed “pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds
$75,000.00 and the action is between citizens of different states.” Doc. no. 1 (Complaint), ¶ 7
(emphasis supplied). The face of the complaint demonstrated that such an assertion was patently
incorrect. The plaintiff is an Alabama corporation, as is one of the defendants, Rismed Dialysis
Systems, Corp. (Alabama). Id. ¶¶ 1, 2. Hence, the complete diversity of citizenship that is
absolutely essential to the existence of jurisdiction under § 1332(a) is lacking.
3

The statutory provision cited as the basis for the claims asserted in Count V permits a party
to commence a civil action to recover damages for an injury resulting from the defendant’s
commission of a felony offense. See Ala. Code § 6-5-370 (1975) (“For any injury, either to person
or property, amounting to a felony, a civil action may be commenced by the party injured without
prosecution of the offender.”). Plaintiff alleged that the defendants, while acting in furtherance of
the conspiracy alleged in Counts I through IV, committed acts that amounted to mail and wire fraud
in violation of 18 U.S.C. §§ 1341 and 1343, respectively. Cf. Lewis v. Fraunfelder, 796 So. 2d 1067
(Ala. 2000).
4

Doc. no. 4 (Motion to Dismiss With Prejudice filed Apr. 4, 2013). See also doc. no. 5
(Motion to Dismiss With Prejudice filed Apr. 8, 2013), reading as follows:
Rismed Oncology Systems, Inc., Plaintiff in this action, Moves [sic] this
honorable court to dismiss this action with prejudice. Plaintiff seeks dismissal with

2

entered on April 9, 2013.5
I. STANDARDS OF REVIEW
Federal Rule of Civil Procedure 60(b) permits a party or its legal representative
to move for relief from a final judgment, order, or proceeding for, among other
reasons: “(3) fraud . . . , misrepresentation, or misconduct by an opposing party; . .
. or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(3), (6).
To obtain relief under Rule 60(b)(3), the moving party must prove by clear and
convincing evidence that “the adverse party obtained the verdict through fraud,
misrepresentations, or other misconduct,” and that “the conduct prevented [the
moving party] from fully presenting his case.” Waddell v. Hendry County Sheriff’s
Office, 329 F.3d 1300, 1309 (11th Cir. 2003) (alteration supplied) (citing Frederick
v. Kirby Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000)).
Rule 60(b)(6), on the other hand, has been described by the Eleventh Circuit
as “an extraordinary remedy,” one that may be invoked “only upon a showing of
exceptional circumstances.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th

prejudice as a settlement has been reached in this action.
Consent has been obtained from the domestic parties all of whom have been
served in this matter. The foreign parties have not stated a position with regard to the
dismissal (Rismed Dialysis Systems, C.A. (Venezuela), Daniel Esgardo Rangel
Baron, Isabel Rangel Baron).
5

See doc. no. 6.

3

Cir. 1984) (citing Ackerman v. United States, 340 U.S. 193, 202 (1950)); see also,
e.g., High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990) (“The law is well established
that Rule 60(b)(6) affords relief from a final judgment only under extraordinary
circumstances”). A party proceeding under that subdivision of the Rule has the
burden of showing that “an ‘extreme’ and ‘unexpected’ hardship will result” if relief
is not granted. Griffin, 722 F.2d at 680 (alteration supplied) (citing United States v.
Swift & Co., 286 U.S. 106, 119 (1932)). Rule 60(b)(6) also is sometimes referred to
as a “catchall provision,” because it applies only to conduct that does not fall into any
of the other categories listed in the first five clauses of the Rule. United States v. Real
Property and Residence, 920 F.2d 788, 791 (11th Cir. 1991); see also, e.g., Liljeberg
v. Health Services Acquisition Corp., 486 U.S. 847, 863 n.11 (1988) (“[C]lause (6)
and clauses (1) through (5) are mutually exclusive.”) (alteration supplied) (citing
Klapprott v. United States, 335 U.S. 601, 613 (1949); 11 C. Wright & A. Miller,
Federal Practice and Procedure § 2864 (1973)).6
6

The full text of Federal Rule of Civil Procedure 60(b) reads as follows:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal representative from
a final judgment, order, or proceeding for the following reasons:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b);

4

II. IMPORTANT PARTIES, PERSONS, AND ENTITIES
RISMED

Rismed Oncology Systems, Inc., an Alabama corporation
with its principal place of business in Huntsville, Alabama.

Jose A. Rodriguez

Jose Alfredo Rodriguez incorporated RISMED and is its
President.

IVSS

The “Instituto Venezolano de los Seguros Sociales,” an entity
of the Bolivarian Republic of Venezuela.

Liliana Di Nardo Rodriguez

The estranged wife of Jose Rodriguez. She and defendant
Daniel Esgardo Rangel-Baron are the biological parents of
Daniel Rangel. She filed for divorce in June of 2013, and
moved back to Venezuela, allegedly to reunite with her first
husband.

Daniel Esgardo Rangel-Baron

The first husband of Liliana Di Nardo Rodriguez, and the
biological father of Daniel Rangel. He resides in Venezuela,
where he was employed from 1999 to 2006 as a salesman for
RISMED. He left that employment to start another company
(“Continental”) with his son, Daniel Rangel.

Daniel Rangel

The son of defendant Daniel Esgardo Rangel-Baron and
Liliana Di Nardo Rodriguez, and the step-son of Jose
Rodriguez (who reared Daniel from the age of thirteen).
Daniel also has been known by such names as Daniel Alberto
Rangel, Daniel R. Di Nardo,7 and Daniel Alberto Rangel-

(3)

fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b).
7

This is the name used by Daniel Rangel when incorporating and registering “Rismed
Dyalysis Systems, Corp. (Florida)” in the State of Florida on July 17, 2008.

5

DiNardo.8
Isabel Rangel-Baron

The sister of Daniel Esgardo Rangel-Baron. She resides in
Venezuela and allegedly was involved in the creation of
“Rismed Dialysis Systems, C.A. (Venezuela).”

Daniel Garlick

A fundamentalist minister and “Christian Mediator” who was
instrumental in the negotiation of the agreements discussed in
Parts III(A) through (C) of this opinion, infra.

Continental

The company allegedly owned by Daniel Esgardo RangelBaron and his son, Daniel Rangel.

Rismed Dialysis Systems, Corp.
(Alabama)

An Alabama entity registered by Daniel Rangel with the
Alabama Secretary of State on April 3, 2006.9

Rismed Dialysis Systems, C.A.
(Venezuela)

An entity registered in Venezuela by defendants Daniel
Esgardo Rangel-Baron (President) and his sister, Isabel
Rangel-Baron (Vice President), on March 19, 2007.

Rismed Dialysis Systems, Corp.
(Florida)

An entity incorporated and registered in Florida on July 17,
2008, by Daniel Rangel (using the name “Daniel R. Di
Nardo”), and listing himself as President and Director.

Campobasso, Inc.

An Alabama corporation created by Jose Rodriguez and
Liliana Di Nardo Rodriguez that owned 27 acres of
farmland at 871 Dug Hill Road in Brownsboro, Alabama.

Campolieto, LLC

An Alabama limited liability company created by Jose
Rodriguez, Liliana Di Nardo Rodriguez, and Daniel Rangel
that owned real estate located at 1220 Somerville Road, in
Decatur, Alabama.

D.R. Properties II, LLC

A limited liability company created by Daniel Rangel. The
properties owned by Campobasso, Inc., and Campolieto,
LLC, were sold to this entity by Liliana Di Nardo
Rodriguez, allegedly for amounts far below market value.

8

This is the name used by Daniel Rangel when executing the Mar. 29, 2013 settlement
agreement discussed in Part III(C) of this opinion, infra.
9

See doc. no. 14 (Defendants’ Opposition to Plaintiff’s Motion for Relief), at 5 (affirming
that Daniel Rangel “is an officer and shareholder in: Rismed AL and Rismed FL”).

6

State Court Complaint

An action filed on August 2, 2013 in the Circuit Court of
Madison County, Ala. (Civil Action No. CV-13-901700)
by RISMED, Campobasso, Inc., Campolieto, LLC, and
Jose Rodriguez (who sued both individually, and, in his
representative capacities as President of RISMED, a
shareholder of Campobasso, Inc., and a member of
Campolieto, LLC) against “Daniel A. Rangel a/k/a Daniel
Di Nardo, Liliana Rodriguez a/k/a Liliana Di Nardo, Daniel
Garlick, and D.R. Properties II, LLC.”10

III. FACTUAL REPRESENTATIONS BY THE MOVANT
Rismed Oncology Systems, Inc. (“RISMED”), is an Alabama corporation that
“supplies medical equipment to Latin America, principally Venuezuela.”11 After
learning that the Instituto Venezolano de los Seguros Sociales (“IVSS”) — an agency
of the Bolivarian Republic of Venezuela that provides dialysis services to the people
of Venezuela — “was searching for a reliable distributor of medical dialysis
supplies,”12 RISMED’s President, Jose A. Rodriguez, began negotiations to fill that
need. The following account of subsequent events is taken from the affidavit Jose
Rodriguez submitted in support of the present motion:13
3.

From 1999 through 2004, I made several attempts to break into
the dialysis business in Venezuela. I procured dialysis-kit
samples from several of my suppliers to send to the Venezuelan
government. After several meetings and several trial samples, my
company, RISMED[,] was awarded an official contract with the

10

See doc. no. 14-2 (Defendants’ Opposition to Plaintiff’s Motion for Relief, Ex. “B”).

11

Doc. no. 1 (Complaint), ¶ 1.

12

Id. ¶¶ 9-10.

13

See doc. no. 7-1 (“Rodriguez Affidavit”).

7

Instituto Venezolano de los Seguros Sociales (“IVSS”) (i.e. Social
Security Administration of Venezuela) with a plan to phase
RISMED into being the sole supplier of dialysis products to the
IVSS.
4.

RISMED employee and salesman, Daniel Esgardo Rangel-Baron
(“Rangel-Baron”) was responsible for the sale of medical
oncology equipment for RISMED in Venezuela, where he
resided. Rangel-Baron had been successful as a salesman in
oncology, thus I entrusted him with the additional responsibility
to overlook the dialysis supply sales.

5.

RISMED’s contract with IVSS began through an initial Purchase
Order (“P.O. 1540/6108”) on June 7, 2004, for 351,780 dialysis
kits. RISMED began supplying dialysis kits to the IVSS, and
started receiving payments for the kits at the end of the first
quarter in 2005.

6.

On March 21, 2005, RISMED received its first payment from
IVSS via wire transfer in the amount of $3,899,980.00 to its
Regions Bank account in Huntsville, Alabama. A payment for
$3,900,000.00 followed on June 10, 2005. The last payment of
$5,919,400.00 was made on August 11, 2005, for a total amount
of $13,719,380.00 for the initial Purchase Order.[14]

7.

A second Purchase Order was initiated during the third quarter of
2005, again to be fulfilled by RISMED. Rangel-Baron began
alleging a “postponement” by the Venezuelan government in
providing a copy of the second Purchase Order. He then
represented that the order was “being processed” with the order
and funds expected to be provided to the RISMED bank account
in Huntsville, Alabama, sometime during the fourth quarter of
2005.

14

A later paragraph in this same affidavit states: “At the time of the first purchase order,
RISMED was supplying 25% of the IVSS needs in dialysis. RISMED was promised a 100%
contract by the time of the second purchase order. . . .” Rodriguez Affidavit ¶19.

8

8.

The payment from the second Purchase Order never arrived.
Rangel-Baron advised me that the IVSS had “cancelled the
contract” with RISMED, and that IVSS was in a new contract
with Continental, a company opened and owned by RangelBaron.

9.

At all times representations were being made that the RISMED
contract had been non-renewed, and that a valid agreement was
in place for IVSS to deal solely with Rangel-Baron and
Continental going forward.

10.

With the IVSS failing to fulfill an additional purchase order with
RISMED, and Rangel-Baron suddenly finding great wealth, I
reasonably believed that the RISMED contract had indeed been
non-renewed and that IVSS intended to place new orders with
Rangel-Baron’s company, Continental.

11.

Rangel-Baron moved his biological son, Daniel Rangel, to
Miami, Florida to “manage the Continental contract with IVSS.”
Daniel Rangel also began representing to me that he was working
with his biological father at “Continental,” and both RangelBaron and Daniel Rangel continued to represent that the IVSS
had decided to go with their “father-son” operation through
Continental.

12.

In May 2012, a friend of mine residing in Caracas, Venezuela
mentioned to me that he had overheard Rangel-Baron represent
that he was the owner of “RISMED,” which my friend knew to be
my company[.]

13.

I then began inquiring deeper into Rangel-Baron’s business
operations, and discovered that Rangel-Baron had opened a
company named “RISMED Dialysis System, C.A., in Venezuela”
on March 19, 2007, [with himself] as President, [and] with his
sister, Isabel Rangel, as Vice-President.

14.

I have now learned that, in 2006, my stepson, Daniel Rangel, had
9

also opened a similarly named company in Alabama, “RISMED
Dialysis Systems, Inc.” I of course realized this was near the
same time the contract in Venezuela for RISMED had purportedly
been cancelled or non-renewed.
15.

I also have now discovered that Rangel-Baron incorporated
“RISMED Dialysis Systems Corporation” in Florida on July 17,
2008 under his son’s name, Daniel Rangel, and yet another
corporation in San Jose, Costa Rica under the name “RISMED
Dialysis Systems Corporation, S.A.,” with a partner by the name
of Orlando Araya Amador.

16.

I learned in August 2012 that, in actuality, IVSS had continued to
make purchase orders for the dialysis kits under the contract trade
name “RISMED,” and that Defendants had set up bank accounts
in Miami[,] Florida, converting the RISMED funds to their
benefit.

17.

It became apparent to me that “father and son” had opened
separate businesses under the same name, RISMED, in order to
steal the money for the planned purchase orders for the dialysis
kits, which was supposed to go to my RISMED company, and all
the while fraudulently representing to me that the Venezuelan
government had awarded a contract to Continental. The IVSS
had been wiring funds to the sole title of “RISMED,” so there was
never an indication to any vendor or suppliers of a diversion or a
fraud.

18.

Although the original contract with the IVSS was specifically
with RISMED Oncology Systems, Inc., I used the trade name
“RISMED Dialysis System” to distinguish my oncology line from
my dialysis line. I also used the name RISMED Dialysis Systems
for the labeling of the RISMED dialysis products going to the
IVSS. Indeed, all of the vendors for RISMED were notified by
me personally to use the name “RISMED Dialysis Systems” on
the product labeling. In fact, I created the artwork for the labels

10

myself, and forwarded it to each of my suppliers.15
The gravamen of the five claims alleged in the complaint subsequently filed by
RISMED in this court is that the defendants had fraudulently diverted wire transfers
of substantial sums paid by IVSS that should have been deposited into RISMED’s
Regions Bank account in Huntsville, Alabama.
Understandably, the suit strained the relationship between Jose Rodriguez and
his step-son, Daniel A. Rangel, as well as the marital union between Jose and his wife
(and Daniel’s mother), Liliana Di Nardo Rodriguez.16 The complaint subsequently
filed in state court by Jose Rodriguez and RISMED (among others) — an event that
will be more fully described in Part III(F) of this opinion, infra — alleged that, during
the month following the commencement of suit in this court, Daniel Rangel
(“Rangel”)
reached out to Rodriguez and expressed interest in repairing their
relationship and building new business partnerships. Rangel
invited Rodriguez to Hong Kong, a sentimental place where
stepson and stepfather had spent lots of time together during the
performance of the [RISMED] contract with the IVSS, texting
Rodriguez “Jose estoy en Miami [i.e., “Jose, I am in Miami”] and
I have to go to HK next week para reunirme con Bain [i.e., “to
meet with Bain”]. Vamos? [i.e., “Want to go?”] Te compro
ticket? [i.e., “I will buy the ticket”]” Rodriguez responded “Like
15

Rodriguez Affidavit ¶¶ 3-18 (alterations supplied).

16

See doc. no. 14-2 (Defendants’ Opposition to Plaintiff’s Motion for Relief, Ex. “B”:
Complaint filed Aug. 2, 2013 in the Circuit Court of Madison County, Ala. as Civil Action No. CV13-901700) (“State Court Complaint”), ¶ 28.

11

the old times, [but] this time I will keep my eyes open so you
won’t escape at night.”
30.

Soon thereafter, Rodriguez began receiving phone calls from
[Daniel] Garlick, an evangelical minister whom both Rangel and
Rodriguez knew and who held himself out as an impartial and
experienced mediator of disputes who was “interested only in
resolution.” At the time, Rodriguez was in Venezuela; however,
he agreed to have lunch with Garlick upon his return.

31.

Unbeknownst to Rodriguez at this time was the fact that Rangel
was paying or had agreed to pay Garlick significant sums of
money, ostensibly to cover medical bills being incurred by a child
of Garlick.

32.

On or about March 25, 2013, Garlick had lunch with Rodriguez
in Huntsville, Alabama.

33.

At the lunch, Garlick attempted to persuade Rodriguez to drop the
Federal Action. Garlick told Rodriguez that the Federal Action,
was “outside of God’s will” and would forever destroy
Rodriguez’s relationships with his step-son, step-daughter and
wife. Garlick further stressed that the Federal Action was an
impairment [sic] for Rodriguez’s wife to come back home, [and]
he added that should Rodriguez be successful in obtaining a
judgment in the Federal Action “Daniel will end up in jail”
because of Rangel’s ownership interest in the defendant
companies.

34.

Garlick told Rodriguez to join him on a trip to Miami, Florida to
meet and negotiate with Rangel. Garlick instructed Rodriguez
that the meeting was to take place without attorneys.

35.

Garlick and Rodriguez traveled to Miami and had multiple
meetings with Rangel.

36.

Following discussions on March 27, 2013, Rangel sent a message
12

to Rodriguez in which he expressed “I love you so much! I feel
so happy about all this.” In response, Rodriguez stated “Daniel,
I feel like running on the street telling the world that I got my son
back.”
37.

38.

Rangel and Rodriguez formed an agreement that would govern
the parties’ business relationship going forward. In broad terms,
Rangel agreed to make certain payments including to provide
capital to Onco America, a company owned by Rodriguez which
was not part of the Federal Action. Rangel also agreed to provide
to Rodriguez an ownership interest in his “Factory and Dialysis
Business” and provide a salary to Rodriguez of at least $10,000
per month.

39.

Rodriguez agreed to give Rangel an ownership interest in Onco
America and dismiss the Federal Action.

40.

A.

On March 28, 2013, Garlick, Rangel and Rodriguez met at the
Rusty Pelican restaurant in Miami, Florida. At the meeting,
Rangel expressed to Rodriguez that he wanted to restore both
their family and business relations. Both Garlick and Rangel
stressed to Rodriguez that “he wouldn’t want to be responsible for
sending his grandchildren’s father to prison” and thus any
agreement between the parties would have to include dismissal of
the Federal Action.

Garlick, who is not an attorney, drafted the terms of the
agreement which both Rangel and Rodriguez executed on March
28, 2013 (the “Miami Accords”).17

The “Miami Accords”
The so-called “Miami Accords,” as drafted by Daniel Garlick and executed by

Jose Rodriguez and Daniel Rangel on March 28, 2013 — with all of the document’s
17

State Court Complaint, ¶¶ 29-40 (alterations supplied).

13

grammatical, spelling, and punctuation errors — read as follows:
As per our verbal agreements, following is a written form of the items
we have agreed upon.
1. Court Case is Irrevocably Closed Documents Will be Drawn and Jose
[Rodriguez] Will Sign deliver by Tuesday March 2, 2013 [sic:
undoubtedly, April 2 was intended, because the Accords were executed
on March 28.]
2. Jose Will Give Daniel Alberto [Rangel] an Ownership Position in
Onco America Parent Company and The Oncology Business
3. Daniel Alberto Will Provide Capitol To Make Sure That Onco
America Remains Solvent (250k-300k?), this money will take care of
the new installation at Indio Mara and a final payment to the builder that
built the bunker. OncoAmerica is solvent, has a large accounts
receivable.
4. Daniel Alberto Will Provide To Jose An Ownership Position In The
Factory And Dialysis Business
5. Jose And Daniel Alberto Will Work Together to Grow Both The
Oncology Business And The Dialysis Business
6. Jose Will Receive Through His Work And Participation In The
Dialysis Business In Addition To His Owners Share Of Profit Enough
To Cover His Monthly Living And Business Expenses in The US
(10,000.00 ?? per month)
7. A detail description of responsibilities will be developed to assure
success for both the dialysis and the oncology business.
8. Any and all Agreements Made Will Have An Arbitration Clause
Action Steps to be taken prior to next week’s meeting

14

a.)

Jose will close court case Monday March 1, 2013 [sic]

b.)

We Will Meet Tuesday March 2, 2013 [sic] In Huntsville

c.)

Enhanced Communication among the parties

d.)

Work Out Details Of shared Ownerships (Percentages/Timeline
etc.)18

In essence, the marginally-literate document provided that, in return for Jose
Rodriguez’s promise to dismiss the suit filed in this court with prejudice (i.e.,
“Irrevocably Closed”), and, to “Give Daniel Alberto [Rangel] An Ownership
Position” in the parent company of an entity identified only as “Onco America” and
“The Oncology Business,” Daniel Rangel promised (among other things) to provide
Jose Rodriguez “An Ownership Position In The Factory and Dialysis Business” (i.e.,
the sale of dialysis supplies to IVSS by “Continental” and the various domestic and
Venezuelan Rismed corporations created and controlled by Daniel Rangel and his
father and aunt).
B.

Presentation of a Formal Settlement Agreement
In accordance with the act implied in the first numbered paragraph of the

Miami Accords — i.e., that formal “Documents Will be Drawn” to effect the parties’
respective agreements, and that “Jose Will Sign deliver by Tuesday March [sic:
18

See doc. no. 14-5 (Defendants’ Opposition to Plaintiff’s Motion for Relief, Ex. “E”)
(alterations supplied).

15

April] 2, 2013” — Daniel Rangel presented a proposed “Confidential Settlement
Agreement and Mutual Release” to Jose Rodriguez on April 1, 2013. It contained no
reference to the Miami Accords.19 Jose Rodriguez expressed to both Rangel and
Garlick his “concern that the Settlement Agreement contained no reference to the
Miami Accords.”20 The complaint filed in state court later that year (see Part III(F),
infra) outlined the events that occurred after Jose did so:
43.

On April 2, 2013, while in Madison County, Alabama, Garlick
expressed to Rodriguez that he strongly opposed the specifics of
the Miami Accords being included in the Settlement Agreement.
Garlick further expressed to Rodriguez that inclusion of the terms
would be a source of future legal disputes and he should “trust his
son.”

44.

Later on April 2, 2013, Rodriguez informed Rangel that he would
be meeting with his attorney on the morning of April 3, 2013 to
review the Settlement Agreement.

45.

On the morning of April 3, 2013 Rangel sent to Rodriguez the
following text messages:
1 Corinthians 13:4-7
Love is patient, love is kind.
It does not envy, it does not boast, it is not proud.
It is not rude, it is not self-serving, it is not easily
angered, it keeps no record of wrongs.
Love does not delight in evil but rejoices with the
truth.

19

See, e.g., State Court Complaint, ¶ 41.

20

Id. ¶ 42.

16

It always protects, always trusts,
always hopes,
always perseveres.
I love you, thank you for putting everything aside
and helping me restore our relationship... Sorry for
hurting you, nunca fue mi intencion Jose [i.e., “it
was never my intention Jose”], you are my dad an
[sic] I will never disappoint you again.
46.

47.

C.

On April 3, 2013, Rodriguez was advised by competent counsel
that he should not execute the Settlement Agreement without it
including reference to the Miami Accords.
On April 3, 2013, while in Madison County, Alabama, Garlick
instructed Rodriguez to ignore his attorney’s advice, that it was
“God’s will” and that he should “trust in his son and be a good
father.”21

Signing the Settlement Agreement
Jose Rodriguez ignored his attorney’s advice and signed the Settlement

Agreement on April 3, 2013. He executed the document in both his individual and
representative capacities, as President of RISMED. He and RISMED are collectively
referred to as either the “RODRIGUEZ PARTIES” or the “RODRIGUEZ
RELEASED PARTIES.”
Daniel Rangel also signed the agreement in his individual and representative
capacities, as President of Rismed Dialysis Systems, Corp. (Alabama), and Rismed

21

State Court Complaint, ¶¶ 43-47 (alterations and emphasis supplied).

17

Dialysis Systems, Corp. (Florida). Rangel is identified in the agreement as “Daniel
Alberto Rangel Di Nardo.” He and the two Rismed defendants are referred to as
either the “DINARDO PARTIES” or the “DINARDO RELEASED PARTIES.”22
Daniel Rangel’s payment of $10.00 to Jose Rodriguez (the stated consideration
for the agreement) was witnessed by Daniel Garlick,23 who had “remained with
Rodriguez at nearly all times” during the first three days of April 2013, “until
Rodriguez executed the Settlement Agreement.”24
1.

The release language

General Release. For and in consideration of one payment to the
RODRIGUEZ PARTIES in the total sum of TEN AND NO/100
DOLLARS ($10.00) inclusive of attorneys’ fees and costs, the receipt
and sufficiency of which are hereby acknowledged and in consideration
of the mutual release of the parties,
THE RODRIGUEZ PARTIES, on behalf of themselves and
their heirs, executors, administrators, agents, attorneys, representatives,
successors, assigns and any person subrogated to their rights, having any
22

See doc. no. 14-1 (Defendants’ Opposition to Plaintiff’s Motion for Relief, Ex. “A”:
“Confidential Settlement Agreement and Mutual Release”), at ECF 8-12. “ECF” is the acronym for
“Electronic Case Filing,” a system that allows parties to file and serve documents electronically. See
Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009).
Bluebook Rule 7.1.4 permits citations to the “page numbers generated by the ECF header.” Wilson
v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The Bluebook: A Uniform System
of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al., 19th ed. 2010)). Even so, the
Bluebook recommends “against citation to ECF pagination in lieu of original pagination.” Wilson,
772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court will cite the original pagination
in the parties’ pleadings. When the court cites to pagination generated by the ECF header, it will,
as here, precede the page number with the letters “ECF.”
23

Id. at ECF 13.

24

State Court Complaint, ¶ 48.

18

rights of representation by or through them, and/or claiming through
them, hereby covenant not to sue, and release, acquit and forever
discharge Rismed Dialysis Systems, Corp. (Alabama), Rismed Dialysis
Systems, Corp. (Florida), Daniel Alberto Rangel Di Nardo . . .
(collectively the “DINARDO RELEASED PARTIES”) of and from:
Any and all past, present or future claims, actions, causes
of action, rights, damages, costs, losses, expenses,
judgments, demands, obligations, interest and
compensation, of every kind and nature whatsoever, known
or unknown, foreseen or unforeseen, in law or in equity,
including, but not limited to, any and all claims arising out
of, involving or relating to: (1) the business relationship
between any of the RODRIGUEZ PARTIES and any of
the DINARDO PARTIES; (2) contracts with the Instituto
Venezolano de los Seguros Sociales (“IVSS”); (3) the
supply of dialysis kits and other services performed for the
IVSS; (4) use of the “Rismed” name; and (5) any claim
which was or could have been asserted in the lawsuit styled
Rismed Oncology Systems, Inc. v. Rismed Dialsyis Systems,
Corp. (Alabama) et al., United States District Court for the
Northern District of Alabama, Civil Action No. 5:13-cv310-CLS (the “Lawsuit”).
THE DINARDO PARTIES, on behalf of themselves and their
heirs, executors, administrators, agents, attorneys, representatives,
successors, assigns and any person subrogated to their rights, having any
rights of representation by or through them, and/or claiming through
them, hereby covenant not to sue, and release, acquit and forever
discharge Jose Rodriguez, Rismed Oncology Systems, Inc., . . .
(collectively the “RODRIGUEZ RELEASED PARTIES”) of and
from:
Any and all past, present or future claims, actions, causes
of action, rights, damages, costs, losses, expenses,
judgments, demands, obligations, interest and
compensation, of every kind and nature whatsoever, known
19

or unknown, foreseen or unforeseen, in law or in equity,
including, but not limited to, any and all claims arising out
of, involving or relating to: (1) the business relationship
between any of the RODRIGUEZ PARTIES and any of
the DINARDO PARTIES; (2) contracts with the Instituto
Venezolano de los Seguros Sociales (“IVSS”); (3) the
supply of dialysis kits and other services performed for the
IVSS; (4) use of the “Rismed” name; and (5) any claim
which was or could have been asserted in the lawsuit styled
Rismed Oncology Systems, Inc. v. Rismed Dialsyis Systems,
Corp. (Alabama) et al., United States District Court for the
Northern District of Alabama, Civil Action No. 5:13-cv310-CLS (the “Lawsuit”).
The RODRIGUEZ PARTIES AND THE DINARDO
PARTIES (together “RELEASORS”) acknowledge and agree that this
Mutual Release is a general release of all released parties.
RELEASORS expressly waive and assume the risk of any and all
claims for damages which exist as of this date, but of which the
RELEASORS do not know or suspect to exist, whether through
ignorance, oversight, error, negligence, or otherwise, and which, if
known, would materially affect RELEASORS’ decision to enter into
this Release. The RODRIGUEZ PARTIES further agree that they
have accepted payment of the sum specified herein along with the
mutual release from the DINARDO PARTIES as a complete
compromise of matters involving disputed issues of fact.25
2.

The merger clause

As previously noted, the Miami Accords were not explicitly referenced in the
Settlement Agreement, but they arguably were implicit in the following clause:
25

See doc. no. 14-1 (Defendants’ Opposition to Plaintiff’s Motion for Relief, Ex. “A”:
“Confidential Settlement Agreement and Mutual Release”), at ECF 2-4 (all emphasis in original,
alterations supplied).

20

Entire Agreement. This Settlement Agreement contains the
entire agreement between the undersigned parties and supercedes any
other agreements and covenants, whether written or oral, and the terms
and conditions of this Settlement Agreement are contractual and not a
mere recital.26
3.

The “no representations” clause

The Settlement Agreement also contained the following statement:
No Representations by Released Parties. RELEASORS
declare that no representation made by any employees, agents or
attorneys of, any of the RELEASED PARTIES, if any, concerning the
validity or merit of any claims has induced them to make this Settlement
Agreement and that they are acting upon their own judgment, belief and
knowledge of the nature of all claims or potential claims against the
RELEASED PARTIES in making this Settlement Agreement.27
4.

The advice of counsel clause

Finally, the agreement contained a provision stating that each party had relied
upon the advice of independent counsel:
Advice of Counsel and Understanding of Release.
RELEASORS warrant and declare that they are acting only after
securing the advice and consultation of legal counsel of their choice.
RELEASORS further acknowledge that they are over eighteen (18)
years of age and that they have carefully read this Settlement Agreement
and fully understand and know the terms thereof, and sign the same
voluntarily as their own free act and upon recommendation of legal
counsel of their choice. RELEASORS further warrant that this
settlement agreement is not being made for any other reason than the

26

Id. at ECF 6 (boldface and underscored emphasis in original, italicized emphasis supplied).

27

Id. at ECF 6-7 (boldface and underscored emphasis in original).

21

consideration expressed in this Settlement Agreement.28
Of course, the statement emphasized by italics — i.e., the representation that Jose
Rodriguez had signed the agreement “upon recommendation of legal counsel of [his]
choice” — was not true. Jose Rodriguez acted contrary to the advice of his attorneys
when executing the Settlement Agreement.29
D.

Dismissal of the Federal Action
Jose Rodriguez caused his attorneys to file two motions to dismiss this action

with prejudice: the first on April 4, and the second on April 8, 2013. The latter
motion was identical to the former one, save for a paragraph stating that both
domestic defendants consented to the dismissal, and that the foreign defendants had
not stated a position.30 Indeed, service then had not been perfected on the three
foreign defendants.
E.

Events Following Dismissal of this Action
Daniel Rangel made several payments to Jose Rodriguez during the months of

April and May, 2013, ostensibly in accordance with the promises referenced by the
Miami Accords. Even so, plaintiff alleges that Rangel did so only as a guise, to retain
the trust of Jose Rodriguez until such time as he, Rangel, could successfully
28

Id. at ECF 7 (boldface and underscored emphasis in original, italicized emphasis supplied).

29

See State Court Complaint, ¶ 46.

30

See supra note 4.

22

consummate fraudulent conveyances of the so-called “Campobasso” and
“Campolieto” properties.31 The complaint later filed in state court described events
following dismissal of the present action in the following manner:
51.

Through the month of April and the start of May 2013, Rodriguez
and Rangel continued to work on the joint business projects
specified in the Miami Accords.

52.

On multiple occasions through April and the start of May 2013,
Rangel reaffirmed his commitment to the Miami Accords both in
words and deeds.

53.

On May 2, 2013[,] Rangel gave Rodriguez $32,000.00 as part of
his commitment under the Miami Accords.

54.

On May 13, 2013, Rangel gave a $5,000 check to Rodriguez as
part of his commitment under the Miami Accords.

55.

On May 17, 2013, Rangel wired $95,000.00 to Rodriguez as part
of his commitment to under [sic] the Miami Accords.

56.

Through mid-May 2013 Rodriguez and Rangel continued to have
Enhanced Communications as called for in the Miami Accords.
Pursuant to this, and the continued promises of the joint business
relationships in the Dialysis Business, [sic] On May 14, 2013
Rangel presented to Rodriguez a deed for his execution as well as
two corporate resolutions. The deed purportedly was to transfer
the Dug Hill Road Property [i.e., 27 acres of farmland located at
871 Dug Hill Road, in Brownsboro, Alabama, the title to which
was held by “Campobasso, Inc.,” an Alabama corporation with
two shareholders: Jose Rodriguez and his wife, Liliana DiNardo
Rodriguez] to D.R. Properties [i.e., D.R. Properties II, LLC: an
Alabama limited liability company created by Daniel Rangel, its
sole member]. And the Corporate resolutions were to give

31

Doc. no. 7 (Plaintiff’s Motion for Relief), at 6.

23

permission to Liliana Di Nardo to make property transfers.
57.

Unknown to Rodriguez was that the Dug Hill Road Property,
along with the Decatur Property [i.e., family real estate located at
1220 Somerville Road in Decatur, Alabama, the title to which
was held by “Campolieto, LLC,” an Alabama limited liability
company with three members: Jose Rodriguez, Liliana Di Nardo
Rodriguez, and Daniel Rangel], had already been transferred to
D.R. Properties and the new papers were simply an attempt to
paper over the fraud. Had Rodriguez known about the prior
frauds or the intent of Rangel to not honor the Miami Accords,
Rodriguez would not have executed the deed and corporate
papers.

58.

Also on May 14, 2013[,] Rangel presented Rodriguez a check for
$30,000.00.
....

60.

There were insufficient funds in the account to cover the
$30,000.00 check.

61.

On May 23, 2013, Rangel promised to Rodriguez in a text
message: “I will give you a new 30k check over the weekend,
sorry about that.”

62.

To date, Rangel has not presented a new check or the $30,000.00
funds.

63.

In May 2013, Rangel delivered to Rodriguez a Bentley [i.e., an
English automobile] that he owned that had been in a car
accident, for which Rangel had no insurance. Rangel contracted
with Rodriguez to repair the car.

64.

Repairs were made to the vehicle totaling $6,990.58.

65.

To date, Rangel has not paid for repairs to the vehicle.
24

66.

On or about June 7, 2013, Liliana Di Nardo filed a complaint for
Divorce against Rodriguez [and returned to Venezuela32].

67.

Rangel has failed to make the payments or fulfill his other
obligations indicated under the Miami Accords. Rangel has
ceased all communications with Rodriguez.33

Jose Rodriguez alleges that he did not learn of the sale of the Campobasso and
Campolieto properties by Liliana Di Nardo Rodriguez to her son at a preferential,
below-market-value price until July 9, 2013, when he drove by the Campobasso
property on Dug Hill Road and noticed a “For Sale by Owner” sign listing the cellular
telephone number of Daniel Rangel.34
F.

The State Court Suit
As a result of the foregoing events, a suit was filed in the Circuit Court of

Madison County, Alabama, on August 23, 2013, by RISMED, Campobasso, Inc.,
Campolieto, LLC, and Jose Rodriguez (who sued both individually, and, in his
representative capacities as President of RISMED, a shareholder of Campobasso,
Inc., and a member of Campolieto, LLC). The persons and entities sued in that action
were an entirely different cast of characters from those named as defendants in the
present action: i.e., the state court defendants were “Daniel A. Rangel a/k/a Daniel

32

See doc. no. 7 (Plaintiff’s Motion for Relief), at 8.

33

State Court Complaint, ¶¶ 51-58, and 60-67 (alterations supplied).

34

See doc. no. 7 (Plaintiff’s Motion for Relief), at 8.

25

Di Nardo, Liliana Rodriguez a/k/a Liliana Di Nardo, Daniel Garlick, and D.R.
Properties II, LLC.” Even though the claims alleged in the state court complaint were
based upon the same nucleus of operative facts discussed in the previous parts of this
opinion, they were entirely different from those that had been asserted in the present
action. Specifically, the state court complaint alleged the following claims:
Count I

“Fraud and Misrepresentation by Rangel”: i.e., Daniel Rangel made
false representations that induced Jose Rodriguez to dismiss the
Federal Action, and to execute deeds and corporate resolutions
concerning the Campobasso and Campolieto properties.

Count II

“Fraud and Misrepresentation by Garlick”: i.e., Daniel Garlick made
false and misleading representations regarding his status as the
parties’ mediator and, thereby, caused Jose Rodriguez and RISMED
to dismiss the Federal Action.

Count III

“Conspiracy”: i.e., defendants engaged in a malicious combination
to defraud plaintiffs, and cause the dismissal of the Federal Action
and the execution of papers concerning the Campobasso and
Campolieto properties.

Count IV

“Breach of Contract (The Miami Accords)”: i.e., Daniel Rangel
breached the Miami Accords by failing to make all payments
required under the terms of that agreement.

Count V

“Breach of Contract (Bentley)”: i.e., Jose Rodriguez agreed to pay
for the cost of repairs to an uninsured English Bentley automobile
owned by Daniel Rangel that had been damaged in an accident, in
return for Rangel’s promise to reimburse him for the cost of the
repairs, but Rangel breached the agreement.

26

Count VI

“Breach of Fiduciary Duties”: i.e., Liliana Di Nardo Rodriguez and
Daniel Rangel breached the fiduciary duties owed to Campolieto and
Campobasso when the properties owned by those entities were sold
to Daniel Rangel’s company, D.R. Properties II, LLC., for prices that
were below market value.

Count VII

“Rescission of Property Transfers”: i.e., plaintiffs sought rescission
of the Campobasso and Campolieto transactions on the grounds of
fraud.

Count VIII “Violation of [Alabama Code] § 6-5-285”: i.e., Daniel Rangel
violated this statute when he tendered Jose Rodriguez a worthless
check.35
Count IX

“Negligence”: i.e., Garlick was negligent for failing to disclose his
conflicts of interest during the mediation.

The state-court defendants moved to dismiss the foregoing claims.36 Their
motion relied primarily upon the terms of the April 3, 2013 Settlement Agreement.
After reviewing briefs and hearing oral argument, the state court judge dismissed the

35

The statute cited provides that:

The holder of a worthless check, draft, or order for the payment of money
shall have a right of action against the person who unlawfully made, uttered or
delivered the same to him or to his endorser; and such action may be maintained
though there has been no prosecution, conviction, or acquittal of the defendant for
his unlawful act. Such action must be commenced within one year from the date of
the unlawful act. The plaintiff in such action may recover such damages, both
punitive and compensatory, including a reasonable attorney fee, as the jury or court
trying the case may assess.
Ala. Code § 6-5-285 (1975).
36

See doc. no. 14-3 (Defendants’ Opposition to Plaintiff’s Motion for Relief, Ex. “C”:
Motion to Dismiss filed Sept. 11, 2013 in the Cir. Ct. Mad. Co., Ala., Civil Action No. CV-13901700) (hereafter, “State Motion to Dismiss”).

27

action, but did not state any reason for doing so in his single-paragraph Order.37
Nevertheless, the dismissal was not appealed, and the time for filing an appeal in the
state-court system lapsed on November 20, 2013.38 Two days later, RISMED filed
the motion that is addresed in this opinion.
IV. DISCUSSION
The first issue that must be confronted is defendants’ contention that, because
RISMED voluntarily dismissed its complaint with prejudice, there is no “final
judgment, order, or proceeding” within the meaning of Rule 60(b); and, therefore, this
court lacks jurisdiction to adjudicate its Rule 60(b) motion.39
Federal Rule of Civil Procedure 41(a)(1) addresses the subject of voluntary
dismissals by a plaintiff “without a court order,” and it reads as follows:
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2,
and 66 and any applicable federal statute, the plaintiff may dismiss an
action without a court order by filing:
37

See doc. no. 14-4 (Defendants’ Opposition to Plaintiff’s Motion for Relief, Ex. “D”: Order
entered Oct. 9, 2013 in the Cir. Ct. Mad. Co., Ala., Civil Action No. CV-13-901700) (providing
“This matter came before the Court on a Motion to Dismiss filed by the above named Defendants.
The Court heard arguments on said motion on October 3, 2013. All parties were represented by and
through their respective counsel. After review of the pleadings, the arguments of counsel[,] and the
applicable law[,] this Court finds that [the] motion is due to be and the same is hereby GRANTED.”)
(alterations supplied).
38

See Ala. R. App. P. 4(a)(1) (“[T]he notice of appeal required by Rule 3 shall be filed with
the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order.
. . .”) (alteration supplied); see also doc. no. 14 (Defendants’ Opposition to Plaintiff’s Motion for
Relief), at 11 (same).
39

See doc. no. 14 (Defendants’ Opposition to Plaintiff’s Motion for Relief), at 14-22.

28

(i)

a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment; or

(ii)

a stipulation of dismissal signed by all parties who have
appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the
dismissal is without prejudice. But if the plaintiff previously dismissed
any federal- or state-court action based on or including the same claim,
a notice of dismissal operates as an adjudication on the merits.
Fed. R. Civ. P. 41(a)(1) (emphasis added to (i) and (ii), all other emphasis in original).
Sub-section (a)(2) of that same Rule addresses the circumstances under which
a plaintiff’s dismissal of an action requires the entry of a court order, and it reads as
follows:
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1),
an action may be dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff’s motion to dismiss,
the action may be dismissed over the defendant’s objection only if the
counterclaim can remain pending for independent adjudication. Unless
the order states otherwise, a dismissal under this paragraph (2) is
without prejudice.
Fed. R. Civ. P. 41(a)(2) (emphasis in original). As the Sixth Circuit observed in D.C.
Electronics, Inc. v. Nartron Corp., 511 F.2d 294, 296 (6th Cir. 1975), Rule 41(a)(2)
“contemplates the exercise of judicial discretion and the issuance of a court order in
response to a motion by plaintiff . . . .”
The facts of this case do not fit neatly into either sub-section (a)(1) or (a)(2) of
29

Rule 41.
Defendants focus upon the fact that both of plaintiff’s motions to dismiss were
filed before any of the defendants had served “either an answer or a motion for
summary judgment”; and, for that reason, they argue that plaintiff’s two motions to
dismiss should, nevertheless, be construed as “notices of dismissal” under Rule
41(a)(1)(A)(i). Indeed, the Eleventh Circuit has held that “[t]he fact that a notice of
dismissal is styled ‘motion to dismiss’ rather than ‘notice of dismissal’ is without
consequence.” Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990) (alteration
supplied). Even so, defendants’ argument overlooks the fact that plaintiff’s second
motion to dismiss stated that:
Consent has been obtained from the domestic parties[,] all of
whom have been served in this matter. The foreign parties have not
stated a position with regard to the dismissal (Rismed Dialysis Systems,
C.A. (Venezuela), Daniel Esgardo Rangel Baron, Isabel Rangel Baron)
[indeed, the foreign defendants had not then been served with process].40
Thus, it might also be argued under those circumstances that plaintiff’s second
motion effectively amounted to a stipulation for dismissal under Rule 41(a)(1)(A)(ii).
In either event, defendants’ point is that plaintiff’s motions to dismiss its
complaint with prejudice were “effective immediately upon the filing of a written

40

Doc. no. 5 (emphasis and alterations supplied); see also note 4, supra.

30

notice of dismissal, and no subsequent court order [was] required.”41 In that regard,
four Circuits — the Sixth, Seventh, Ninth, and Tenth — have held that the filing of
a notice of dismissal under Rule 41(a)(1)(A)(i) does not require court approval.42 In
like manner, two Circuits — the Third and Eighth — have held that the filing of a
stipulation for dismissal under Rule 41(a)(1)(A)(ii) “is effective immediately and
does not require judicial approval.”43 Perhaps the point of all such decisions was best
stated by the former Fifth Circuit in a case discussing the effect of filing a notice of
41

Doc. no. 14 (Defendants’ Opposition to Plaintiff’s Motion for Relief), at 18 (quoting
Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990) (emphasis and alteration supplied, citation
omitted).
42

See Merit Insurance Co. v. Leatherby Insurance Co., 581 F.2d 137, 141 (7th Cir. 1978)
(observing that the predecessor to the present Rule “‘is clear and unambiguous on its face and admits
of no exceptions that call for the exercise of judicial discretion by any court’”) (quoting D.C.
Electronics, Inc. v. Nartron Corp., 511 F.2d 294, 298 (6th Cir. 1975) (observing, id. at 296, that the
predecessor to the present Rule “provides for dismissal of an action upon the unilateral filing of a
notice of dismissal with the Clerk of Court and without the necessity of . . . [an] order of the court”)
(ellipses and alteration supplied). See also, e.g., Scam Instrument Corp. v. Control Data Corp., 458
F.2d 885, 888 (7th Cir. 1972) (holding that the filing of a notice of dismissal “automatically
terminated the action upon the filing of the dismissal with the clerk. No order of court was
required.”) (citing Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970) (same)); Hyde Construction
Company v. Koehring Company, 388 F.2d 501, 507 (10th Cir. 1968) (“The purpose of that rule is
to provide a means for terminating an action automatically by filing with the clerk a notice of
dismissal. That notice closes the file; no order of the court is needed.”) (emphasis supplied, citation
omitted).
43

United States v. Altman, 750 F.2d 684, 696-97 (8th Cir. 1984) (quoting Gardiner v. A.H.
Robins Co., Inc., 747 F.2d 1180, 1189 (8th Cir. 1984)). See also First National Bank of Toms River,
N.J. v. Marine City, Inc., 411 F.2d 674, 677 (3d Cir. 1969) (same); 130 F.2d 185, 186 (3d Cir. 1942)
(observing that “the parties themselves may by stipulation . . . dismiss the action”); Ajiwoju v.
Cottrell, 245 F. App’x 563, 564, 2007 WL 2323972, at *1 (8th Cir. 2007) (per curiam) (“A
voluntary dismissal pursuant to Rule 41(a)(1) is effective upon entry and does not require judicial
approval.”) (citing Gardiner, supra); Scher v. Ashcroft, 960 F.2d 1053 (Table), 1992 WL 83547, at
*1 (8th Cir. 1992) (per curiam) (“A voluntary dismissal by stipulation under Rule 41(a)(1)(ii) . . .
is effected without order of court. . . .”) (citing Altman, supra).

31

dismissal under the predecessor to present Rule 41(a)(1)(A)(i). According to the
panel in American Cyanamid Co. v. McGhee, 317 F.2d 295 (5th Cir. 1963), that Rule
is the shortest and surest route to abort a complaint when it is applicable.
So long as [the] plaintiff has not been served with his adversary’s
answer or motion for summary judgment he need do no more than file
a notice of dismissal with the Clerk. That document itself closes the file.
There is nothing the defendant can do to fan the ashes of that action into
life and the court has no role to play. This is a matter of right running
to the plaintiff and [it] may not be extinguished or circumscribed by
adversary or court. There is not even a perfunctory order of court
closing the file. Its alpha and omega was the doing of the plaintiff
alone. . . .
Id. at 297 (alterations and emphasis supplied).
Based upon such rulings, defendants argue that RISMED’s voluntary dismissal
of its complaint with prejudice did not constitute a “final judgment, order, or
proceeding” within the meaning of Rule 60(b); and, therefore, that this court lacks
jurisdiction to adjudicate plaintiff’s motion for relief.
The only cases that support defendants’ bottom line, however, are two Eighth
Circuit opinions that addressed the effect of voluntary dismissals by stipulation under
the predecessor to present Rule 41(a)(1)(A)(ii). Ajiwoju v. Cottrell, 245 F. App’x
563, 565 (8th Cir. 2007) (per curiam); Scher v. Ashcroft, 960 F.2d 1053 (Table), 1992
WL 83547 (8th Cir. 1992) (per curiam). Both cases held that, because a dismissal by
stipulation “is effected without court order, ‘there is no final order or judgment from

32

which a party may seek relief under Rule 60(b).’” Ajiwoju, 245 F. App’x at 565
(quoting Scher, 1992 WL 83547, at *1). Notably, however, neither Ajiwoju nor Scher
was published. Hence, the opinions do not possess binding authority in even the
Circuit of their origin.
In contrast, plaintiff focuses upon the terms “final” and “proceeding” in Rule
60(b)’s prefatory paragraph,44 and asks this court to follow the rationale of the Fifth
Circuit’s opinion in Yesh Music v. Lakewood Church, 727 F.3d 356 (5th Cir. 2013),
and hold that a voluntary dismissal by either notice or stipulation is “a final . . .
proceeding” for purposes of that Rule. The Yesh Music Court held that a plain
reading of the term “final” supports defining it as something that is practically
“finished,” “closed,” or “completed.” Id. at 360 (citing Gillespie v. United States
Steel Corp., 379 U.S. 148, 152 (1964) (“[T]he requirement of finality is to be given
a ‘practical rather than a technical construction.’”) (alteration supplied)). Thus, the
Yesh Music Court held that, “unless a plaintiff acts to re-file her claim in the future,
a Rule 41(a)(1)(A) voluntary dismissal terminates, closes, and ends her cause of
action, and, therefore, can rightly be considered ‘final.’” Id. (citing Devino v.
Duncan, 215 F. Supp. 2d 414, 417 (S.D. N.Y. 2002)).

44

“On motion and just terms, the court may relieve a party or its legal representative from
a final judgment, order, or proceeding for the following reasons: . . . .” Fed. R. Civ. P. 60(b)
(emphasis supplied).

33

While [the terms] judgments and orders might imply the involvement of
a judicial action, a “proceeding” does not necessarily require any such
action. Rather, “[t]he term ‘proceeding’ is indeterminate,” and may be
used to describe the entire course of a cause of action or any act or step
taken in the cause by either party. See Reid v. Angelone, 369 F.3d 363,
368 (4th Cir. 2004).
Yesh Music, 727 F.3d at 360 (first alteration and emphasis supplied, second alteration
in original).
Plaintiff also asserts that “the great weight of caselaw from other circuits
supports the conclusion that a dismissal, either with or without prejudice, is
considered a ‘final’ proceeding for purposes of Rule 60(b),”45 and cites decisions
from five circuits holding that a voluntary dismissal is a “final proceeding” for
purposes of Rule 60(b).46
Even though it does not appear that the Eleventh Circuit has decided the
precise issue argued by the defendants, the panel that decided State Treasurer of the

45

Doc. no. 17 (Brief in Support of Plaintiff’s Motion for Relief), at 31.

46

Id. at 31-36. See Nelson v. Napolitano, 657 F.3d 586, 589 (7th Cir. 2011) (“We agree that
there may be instances where a district court may grant relief under Rule 60(b) to a plaintiff who has
voluntarily dismissed the action.”); In re Hunter, 66 F.3d 1002, 1004-05 (9th Cir. 1995) (holding that
a voluntary dismissal “is a judgment, order, or proceeding from which Rule 60(b) relief can be
granted”); Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989) (“‘[A]n unconditional dismissal
terminates federal jurisdiction except for the limited purpose of reopening and setting aside the
judgment of dismissal within the scope allowed by [Fed. R. Civ. P.] 60(b).’”) (first alteration
supplied, second alteration in original) (quoting McCall-Bey v. Franzen, 777 F.2d 1178, 1185 (7th
Cir. 1985)); Fairfax Countywide Citizens Association v. Fairfax County, Virginia, 571 F.2d 1299,
1302-03 (4th Cir. 1978) (holding that the court retains the ability to vacate a Rule 41(a)(1)(A)(ii)
stipulated dismissal under Rule 60(b)(6)); Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th
Cir. 1976) (same).

34

State of Michigan v. Barry, 168 F.3d 8 (11th Cir. 1999), addressed the analogous
question of whether there had been a “final decision” in a case in which the district
court had entered partial summary judgment on some claims, and the parties had
agreed (“stipulated”) to a dismissal of the remaining claim without prejudice, in order
to confer appellate jurisdiction under 28 U.S.C. § 1291. Among other issues
discussed in the Barry opinion, the Court observed that “a Rule 41 voluntary
dismissal without prejudice is a final decision.” Id. at 18 (emphasis in original).
Based upon the analogous opinion in Barry, the number of circuits holding
contrary to defendants’ position, and the superior rationale of those decisions, this
court predicts that the Eleventh Circuit will, when squarely faced with the same issue,
adopt the majority position and hold that a Rule 41(a)(1)(A) voluntary dismissal by
a plaintiff constitutes a “final order, judgment, or proceeding” for purposes of Rule
60(b).47
Accordingly, this court concludes that it does possess subject matter
jurisdiction to address plaintiff’s motion for relief from judgment.
A.

The Timeliness of Plaintiff’s Assertion of the Subject Motion
“A motion under Rule 60(b) must be made within a reasonable time — and for
47

Due to this holding, it is not necessary to address plaintiff’s alternative arguments: i.e., the
motions to dismiss were only requests for the court to enter an order dismissing the case, and not
notices of dismissal; and, the court’s order of dismissal amounted to a consent decree that may be
reviewed as a final order. See doc. no. 17 (Reply Brief in Support of Motion for Relief), at 38-40.

35

reasons (1), (2), and (3) no more than a year after the entry of the judgment or order
or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). This action was dismissed
in April 2013, and plaintiff’s motion to set aside the order of dismissal was filed
seven and a half months later, on November 22, 2013. Hence, it is timely.
B.

Plaintiff’s Standing to Assert the Motion
Defendants argue that the misrepresentations alleged as the inducement for

Jose Rodriguez’s execution of the Settlement Agreement and subsequent dismissal
of this action were — even if they occurred — not directed to the plaintiff, RISMED,
but to Jose Rodriguez, a nonparty.
Even so, “a nonparty may seek relief from a judgment procured by fraud if the
nonparty’s interests are directly affected.” Eyak Native Village v. Exxon Corp., 25
F.3d 773, 777 (9th Cir. 1994) (citing Kem Manufacturing Corp. v. Wilder, 817 F.2d
1517, 1521 (11th Cir. 1987)).48 Several courts also have allowed relief where the
moving nonparty was in some form of privity with a party to the prior proceeding.
See Bridgeport Music, Inc. v. Smith, 714 F.3d 932, 940 (6th Cir. 2013) (citing Eyak
48

Several courts also have allowed a nonparty to seek relief under Rule 60(b) where the
nonparty’s interests were directly or strongly affected by the judgment. See Bridgeport Music, Inc.
v. Smith, 714 F.3d 932, 940 (6th Cir. 2013) (citing Grace v. Bank Leumi Trust Co., 443 F.3d 180,
188-89 (2d Cir. 2006); Binker v. Pennsylvania, 977 F.2d 738, 745 (3d Cir. 1992); Dunlop v. Pan Am.
World Airways, Inc., 672 F.2d 1044, 1051-52 (2d Cir. 1982)). See also In re Lawrence, 293 F.3d
615, 627 n.11 (2d Cir. 2002) (noting that “several circuit courts have permitted a non-party to bring
a Rule 60(b) motion or a direct appeal when its interests are strongly affected, and we have permitted
such a motion on at least one occasion”).

36

Native Village, 25 F.3d at 777). Fundamentally, however, Rule 60(b) explicitly
permits a court to “relieve a party or [its] legal representative from a final judgment,
order or proceeding.” Fed. R. Civ. P. 60(b) (alteration and emphasis supplied). As
the Eleventh Circuit has observed,
[t]he cases make clear that the term legal representative was
intended to reach only those individuals who were in a position
tantamount to that of a party[,] or whose legal rights were otherwise so
intimately bound up with the parties that their rights were directly
affected by the final judgment.
Kem Manufacturing, 817 F.2d at 1520 (alterations and emphasis supplied) (citing
Dunlop v. Pan American World Airways, Inc., 672 F.2d 1044, 1052 (2d Cir. 1982);
Western Steel Erection Co. v. United States, 424 F.2d 737, 739 (10th Cir. 1970);
Mobay Chemicals Co. v. Hudson Foam Plastics Corp., 277 F. Supp. 413, 416 (S.D.
N.Y. 1967)).
Jose Rodriguez incorporated RISMED, and he is its President. His legal rights
were inextricably entwined with RISMED’s rights under the IVSS dialysis supply
contract. He was directly affected by the dismissal of RISMED’s complaint.
Accordingly, Jose Rodriguez possesses standing to raise on behalf of RISMED a Rule
60(b) challenge to this court’s order.
C.

Rule 60(b)(3)
1.

Fraud “by an opposing party”
37

Defendants next contend that plaintiff cannot satisfy Rule 60(b)(3)’s
requirement for a movant to show that the order dismissing all claims was obtained
through fraud, misrepresentation, or other misconduct “by an opposing party.”
Defendants focus upon the fact that the frauds, misrepresentations, and misconduct
alleged by plaintiff were, even if they occurred, committed by non-parties, Daniel
Rangel and Daniel Garlick. That argument is not persuasive. Daniel Rangel
incorporated Rismed Dialysis Systems, Corp. (Alabama), and registered it with the
Alabama Secretary of State. He also was named as the incorporator of Rismed
Dialysis Systems, Corp. (Florida). He is President of both corporations. Both of
those corporate entities were parties to this action. “When a corporation is involved,
of course, it may act only through people as its [officers, agents, servants, attorneys,
or] employees; and, in general, a corporation is responsible under the law for the acts
and statements of its [officers, agents, servants, attorneys, or] employees that are
made within the scope of their duties as [officers, agents, servants, attorneys, or]
employees of the company.”49 Both of the domestic Rismed defendants were
controlled by Daniel Rangel, and both were instrumental to the diversion of IVSS
funds that should have been deposited to RISMED’s Regions Bank account in
Huntsville, Alabama. Furthermore, Daniel Garlick allegedly was not a neutral party,
49

ELEVENTH CIRCUIT CIVIL PATTERN JURY INSTRUCTIONS, Basic Instruction No. 3.2.2
(2013) (alterations supplied).

38

but acted on behalf of Daniel Rangel, who either “was paying or had agreed to pay
Garlick significant sums of money, ostensibly to cover medical bills being incurred
by a child of Garlick.”50 It is Black Letter law that “[a] principal is liable for the fraud
of its agent, committed in the course of his employment, where others rely on the
fraudulent misrepresentations to their detriment.”51

Thus, any fraud or

misrepresentation by Daniel Rangel and Daniel Garlick is attributable to “opposing
parties.”
2.

The reasonableness of reliance

Alabama law is clear that a party claiming to have been induced to commit a
detrimental act by a fraudulent misrepresentation must establish, in addition to the
other elements of a prima facie case,52 that his reliance upon the falsehood was
reasonable when viewed in the light of all of the facts and circumstances surrounding
the transaction in question. The Alabama Supreme Court framed the standard as
follows in Torres v. State Farm & Casualty Co., 438 So. 2d 757 (Ala. 1983):
Because it is the policy of courts not only to discourage fraud[,]
but also to discourage negligence and inattention to one’s own interests,
the right of reliance comes with a concomitant duty on the part of the
50

State Court Complaint, ¶ 31.

51

Arkel Land Co. v. Cagle, 445 So. 2d 858, 862 (Ala. 1984) (per curiam) (alteration
supplied) (citations omitted).
52

See generally ALABAMA PATTERN JURY INSTRUCTIONS – CIVIL § 18.01 (Intentional False
Statement) (3d ed. 2013); Jenelle Mims Marsh, ALABAMA LAW OF DAMAGES § 36:32, at 902-03 (6th
ed. 2012).

39

plaintiffs to exercise some measure of precaution to safeguard their
interests. In order to recover for misrepresentation, the plaintiffs’
reliance must, therefore, have been reasonable under the circumstances.
If the circumstances are such that a reasonably prudent person who
exercised ordinary care would have discovered the true facts, the
plaintiffs should not recover. Bedwell Lumber Co. v. T & T
Corporation, 386 So. 2d 413, 415 (Ala. 1980).
“If the purchaser blindly trusts, where he should not, and
closes his eyes where ordinary diligence requires him to
see, he is willingly deceived, and the maxim applies,
“volunti [sic] non fit injuria” [i.e., a person who knowingly
and voluntarily risks danger cannot recover for any
resulting injury].
Munroe v. Pritchett, 16 Ala. 785, 789 (1849).
Torres, 438 So. 2d at 758–59 (alterations supplied, footnote omitted).53
Among other considerations, the “reasonable reliance” standard imposes upon
a plaintiff a “general duty . . . to read the documents received in connection with a
particular transaction.” Foremost Insurance Co. v. Parham, 693 So. 2d 409, 421
(Ala. 1997) (overruling Hickox v. Stover, 551 So. 2d 259 (Ala. 1989), the case that
established the so-called “justifiable reliance” standard under which a plaintiff in a
fraud action was required to prove only that he or she had “justifiably relied” on the
defendant’s misrepresentations, even if the plaintiff had been in possession of

53

The omitted footnote observed that the Latin maxim recited in the quote from Monroe v.
Pritchett is correctly spelled “volenti non fit injuria,” and defined it as standing for “[t]he principle
that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.”
Torres, 438 So. 2d at 759 n.3 (quoting BLACK’S LAW DICTIONARY 1605 (8th ed. 2004)).

40

documents that, if the plaintiff had read them, were inconsistent with the statements
on which the plaintiff alleged that he relied, and replacing Hickox with the
“reasonable reliance” standard represented by cases such as Foremost and Torres,
supra).
Thus, under the “reasonable reliance” standard, a person has no right to
“blindly rely on an agent’s oral representations or silence to the exclusion of written
disclosures in a policy” or other documents received in connection with a transaction.
Ex parte Carver, 742 So. 2d. 168, 172-73 (Ala. 1999). Indeed,
[w]hen reviewing a plaintiff’s actions pursuant to the
reasonable-reliance standard, [the Alabama Supreme] Court has
consistently held that a plaintiff who is capable of reading documents,
but who does not read them or investigate facts that should provoke
inquiry, has not reasonably relied upon a defendant’s oral
representations that contradict the written terms in the documents. . . .
AmerUS Life Insurance Co. v. Smith, 5 So. 3d 1200, 1208 (Ala. 2008) (alterations
supplied).
Here, Jose Rodriguez read the “Confidential Settlement Agreement and Mutual
Release” presented to him on April 1, 2013, and noted the omission of any reference
to the mutual promises contained in the “Miami Accords.” He not only expressed his
“concern” over that omission to Daniel Rangel and Daniel Garlick, but took the draft
agreement to the attorneys who had filed the present action. He was advised by those

41

attorneys to “not execute the Settlement Agreement without it including reference to
the Miami Accords.”54 He, nevertheless, ignored the advice of counsel, executed the
agreement, and subsequently directed his attorneys to file motions to dismiss this
action with prejudice. There is no evidence that Jose Rodriguez then was unable to
comprehend words written and spoken in the English language, or that he suffered
from any infirmity that affected his comprehension of the documents that precipitate
the dismissal of this action. Indeed, all evidence tends to show that Mr. Rodriguez
was an experienced businessman.
It clearly appears that Jose Rodriguez was motivated to reach a settlement of
the claims asserted in this action by a combination of considerations: appeals based
upon his familial love and affection to heal the discord within his family; entreaties
to spare his step-son from a criminal prosecution for wire fraud; and, appeals to his
deeply religious nature. Even so, Mr. Rodriguez failed to exercise a reasonable
degree of caution to safeguard his own, and RISMED’s, interests. Instead, he ignored
the advice of counsel, and blindly trusted oral advice to “trust his son” to fulfill the
promises contained in the Miami Accords when the typewritten text of the Settlement
Agreement explicitly stated that it superceded “any other agreements and

54

State Court Complaint, ¶ 46.

42

covenants.”55 In short, Jose Rodriguez closed his eyes where ordinary diligence
required him to see, and he thereby was willingly deceived. See Torres, 438 So. 2d
at 758–59. As the Alabama Supreme Court observed long ago, the maxim volenti non
fit injuria applies. Munroe v. Pritchett, 16 Ala. at 789.
D.

Rule 60(b)(6)
Plaintiff makes three arguments for setting aside the dismissal of this action on

the basis of Rule 60(b)(6): Jose Rodriguez executed the Miami Accords and
Settlement Agreement without knowledge that his wife already had executed deeds
in an attempt to transfer title to the Campobasso and Campolieto properties to her
son’s company, D.R. Properties II, LLC, at preferential, below-market-value prices;
Jose Rodriguez subsequently executed “Unanimous Written Consents” to complete
the transfer of title to those properties (and a quitclaim deed for the Campobasso
property) as part of the resolution of this case, without knowledge that those
properties “had already been fraudulently transferred”;56 and, defendants attempted
to “cover up” the fraudulent transfers through “backdated documents.”
As defendants note, however, neither the complaint filed in this action, nor the
two agreements that precipitated plaintiff’s motions to dismiss, referred to the
55

Doc. no. 14-1 (Exhibit “A” to Defendants’ Opposition to Plaintiff’s Motion for Relief:
“Confidential Settlement Agreement and Mutual Release”), at ECF 6.
56

Doc. no. 7 (Motion to Set Aside Order of Dismissal), at 6.

43

Campobasso and Campolieto properties. Instead, both properties were “part of an
unrelated and isolated transaction.”57 Further, the veracity of Jose Rodriguez’s
allegation that, on the dates he signed the Miami Accords (March 28, 2013) and the
Settlement Agreement (April 3, 2013), he knew nothing about his wife’s prior
attempts to transfer the properties to her son’s company is undermined by his act of
recording on March 7, 2013 — i.e., prior to either agreement — a deed purporting to
transfer title to the Campobasso property to himself.58
Fundamentally, however, plaintiff’s arguments pertaining to the Campobasso
and Campolieto properties hinge on contentions of fraud and deceit by his estranged
wife and step-son, or by the attorneys who represented them. Therefore, such
arguments are misplaced as a basis for affording relief under Rule 60(b)(6). As
explained in Part I of this opinion, that portion of the Rule applies only to conduct
that does not fit within the first five clauses of Rule 60(b). See, e.g., United States v.
Real Property and Residence, 920 F.2d 788, 791 (11th Cir. 1991) (observing that
Rule 60(b)(6) “applies only to cases that do not fall into any of the other categories
listed in parts (1)-(5) of Rule 60(b)”); Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 863 n.11 (1988) (“[C]lause (6) and clauses (1) through (5) are mutually

57

Doc. no. 21 (Defendants’ Sur-Reply), at 8.

58

Id. ¶ 12; see also doc. no. 21-5 (Ex. “C”).

44

exclusive.”) (alteration supplied).59
V. CONCLUSION AND ORDER
It is a gross understatement to say that the conclusions of law recorded in this
opinion are not satisfying. The deceits practiced upon Jose A. Rodriguez by his wife
and step-son (aided by their agents, Daniel Garlick, Daniel Esgardo Rangel-Baron,
and attorneys) are far more than simply reprehensible. Some of their actions, such as
the diversion of wire transfers of funds that should have been deposited into
plaintiff’s Alabama bank account, are probably criminal.
Ultimately, however, RISMED must be denied relief under Federal Rule of
Civil Procedure 60(b) because its President, Jose Rodriguez, has not demonstrated
that his reliance on the frauds that led him to dismiss this action with prejudice was
reasonable under the circumstances.
Plaintiff’s motion for relief from judgment is DENIED.60
DONE and ORDERED this 7th day of March, 2014.

______________________________
United States District Judge

59

See supra note 6 for the text of Fed. R. Civ. P. 60(b).

60

Due to this holding, it is not necessary to address defendants’ alternative arguments.

45