Jackson et al v. Asian-Pacific Investments, Inc. et al

Filing 40

OPINION AND ORDER granting in part and denying in part 39 Plaintiffs' Motion for Entry of Judgment. A default judgment is granted as to Count I in favor of plaintiffs. Counts II through IV are dismissed without prejudice as a shotgun pleadin g. Plaintiffs are awarded actual damages in the amount of $684,400.00, plus statutory treble damages in the amount of $2,053,200.00 against defendants Rudolf Walcher and Miguel E. Bascope Noguera. The Clerk shall enter judgment as provide d in paragraph 1, and also dismiss defendants Asian-Pacific Investments, Inc. and Wolf Ekkehard Ast with prejudice. The Clerk is further directed to terminate all remaining motions, deadlines, and to close the case. Signed by Judge John E. Steele on 11/17/2014. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SEAN JACKSON
JACKSON,

and

RAYMOND

Plaintiffs,
v.

Case No: 2:12-cv-535-FtM-29DNF

ASIAN-PACIFIC
INVESTMENTS,
INC., WOLF EKKEHARD AST,
RUDOLF WALCHER, and MIGUEL
E. BASCOPE NOGUERA d/b/a
International Project Law
Real Estate,
Defendants.
OPINION AND ORDER
This matter comes before the Court upon review of pro se
plaintiffs’ Motion for Entry of Judgment (Doc. #39), filed on March
4, 2014.

No responses have been filed and the time to do so has

expired.

Defendants Asian-Pacific Investments, Inc. and Wolf

Ekkehard Ast were dismissed with prejudice; however, the Clerk was
directed to withhold entry of judgment until the conclusion of the
case.

(Doc. #25.)
I.

On September 26, 2012, plaintiffs Sean Jackson and Raymond
Jackson filed a Complaint for Damages arguing: Fraud, Conspiracy
to Commit Fraud, Violation of Racketeer Influenced and Corrupt
Organizations Act 18 U.S.C. § 1961, Breach of Fiduciary Duty and

Covenant of Good Faith and Fair Dealing, and Demand for Jury Trial
(Doc.

#1)(Complaint)

against

Asian-Pacific

Investments,

Inc.

(Asian-Pacific), Wolf Ekkehard Ast (Wolf Ast), Rudolf Walcher
(Walcher), and Miguel E. Bascope Noguera (Noguera).

A Clerk’s

Entry of Default (Doc. #35) was entered against Walcher and Noguera
due to their failure to respond.
Civ.

P.

55(a),

plaintiffs

Therefore, pursuant to Fed. R.

have

fulfilled

the

necessary

prerequisite for entry of default judgment.
“A defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus
established.

[ ] A default judgment is unassailable on the merits,

but only so far as it is supported by well-pleaded allegations.
[ ] A default defendant may, on appeal, challenge the sufficiency
of the complaint, even if he may not challenge the sufficiency of
the proof.”

Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc.,

561 F.3d 1298, 1307 (11th Cir. 2009)(internal quotations and
citations omitted).
Deeming all facts in the Complaint as admitted, beginning in
February 2006, defendant Walcher intentionally misrepresented that
he was the sole owner of 10 acres of beach front property on the
Bay of Salinas, in San Juan del Sur, Nicaragua (the property),
enticing plaintiffs to enter into a joint development agreement.
(Doc. #1, ¶¶ 16-18.)

In fact, Walcher did not purchase the

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property until April 2006, and used funds provided by Asian-Pacific
and Wolf Ast.

(Id.)

Based on Walcher’s representation that he

was the sole owner, the parties entered into joint development
partnership agreement in May 2006.

(Id.)

According to the

agreement, Walcher would provide the property and the Jacksons
would develop and market the property until $1,000,000.00 was paid
to Walcher with the remainder going to the Jacksons.

(Id. ¶ 17.)

Subsequent agreements were made between the parties extending the
deadline for repayment of the $1,000,000.00.

(Id. ¶¶ 18-22.)

In December 2009, Walcher contacted the Jacksons and revealed
for the first time his partnership with Asian-Pacific and Wolf
Ast.

(Id. ¶ 22.)

Walcher and Noguera presented the Jackson’s

with another agreement (Agreement 3) claiming its sole purpose was
to

extend

February,

the
2010.

deadline

for

(Id.)

payment

Walcher

of
and

the

$1,000,000.00

Noguera

to

intentionally

concealed the existence of a power of attorney provision and the
consequences thereof.
Jackson’s

that

(Id.)

pursuant

Walcher also failed to inform the

to

Asian-Pacific

and

instructions, no further extensions would be made.

Wolf

Ast’s

(Id.)

In

reliance on the representations of both Walcher and Noguera, the
Jacksons executed Agreement 3.

(Id.)

As a result of defendants’

intentional misrepresentations, plaintiffs suffered $1,700,000.00
in damages.

(Id. ¶ 27.)

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II.
Prior to entering a default judgment, the court “must ensure
that the well-pleaded allegations in the complaint, which are taken
as true due to the default, actually state a substantive cause of
action and that there is a substantive, sufficient basis in the
pleadings for the particular relief sought.”

Tyco Fire & Sec.,

LLC v. Alcocer, 218 F. App'x 860, 863 (11th Cir. 2007) (per curiam)
(unpublished).

Where a complaint fails to state a claim, a default

judgment on the complaint may not stand.

United States v. Kahn,

164 F. App'x 855, 858 (11th Cir.2006) (per curiam) (unpublished).
A.

RICO Claim

In Count I, plaintiffs allege a violation of the Racketeer
Influenced

and

Corrupt

defendants

intentionally

Organizations
defrauded

(RICO)
them

statute

by

using

asserting
email

and

telephone communications in violation of 18 U.S.C. § 1343.
To state a claim under the civil RICO statutes, a plaintiff
must allege “(1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.”

Langford v. Rite Aid of Ala.,

Inc., 231 F.3d 1308, 1311 (11th Cir. 2000).
racketeering

activity”

consists

of

“at

least

A “pattern of
two

acts

of

racketeering activity . . . the last of which occurred within ten
years . . . after the commission of a prior act of racketeering
activity.”

18 U.S.C. § 1961(5) (2006).

Consequently, a well-

pleaded civil RICO claim “must allege facts sufficient to support

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each of the statutory elements for at least two of the pleaded
predicate acts.”

Republic of Pan. v. BCCI Holdings (Lux.) S.A.,

119 F.3d 935, 949 (11th Cir. 1997).

A predicate act could be any

act indictable under certain enumerated statutes.

18 U.S.C. §

1961(1) (2006).
Among these enumerated statutes is 18 U.S.C. § 1343 (Wire
Fraud).

In order to establish wire fraud, a plaintiff must

establish: (1) defendants' intentional participation in a scheme
to defraud (2) the plaintiffs of money or property (3) using
interstate

mails

and

wires

in

furtherance

of

the

scheme

(4)

resulting in plaintiffs' injury (5) that can be quantified as a
specific amount of damages.

See 18 U.S.C. § 1343.

“A scheme to

defraud requires proof of a material misrepresentation, or the
omission or concealment of a material fact calculated to deceive
another out of money or property.”

United States v. Maxwell, 579

F.3d 1282, 1299 (11th Cir. 2009) (citing United States v. Svete,
556 F.3d 1157, 1161, 1169 (11th Cir. 2009)).
Plaintiffs’
defendants,

RICO

through

claim

emails

arises
and

from

telephone

the

allegations

that

communications

with

plaintiffs, intentionally: (1) pretended to own real property
owned by another in order to entice plaintiffs into a development
agreement; (2) created a partnership with the plaintiffs without
revealing the true identities of the parties and the extent of
their control; (3) intentionally

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misrepresented the nature of

Agreement 3, concealing the power of attorney and their intention
to terminate the agreement.

(Doc. #1, ¶ 25.)

Upon review of the

Complaint, the Court finds that the allegations are sufficiently
pled to support a default judgment against defendants as to Count
I.
B.

Damages

For plaintiffs able to prove elements of a substantial RICO
claim, § 1964 details civil remedies available, and provides that
a person injured in business or property may sue for treble
damages, cost of suit, and attorney fees.

To sustain a claim for

treble damages plaintiff in a RICO action must prove a RICO
violation, injury to business or property, and that the violation
caused the injury.

Avirgan v. Hull, 932 F.2d 1572, 1579 (11th

Cir. 1991).
By Declaration in Support of Request for Entry of Judgment
(Doc. #39-2), plaintiff Raymond Jackson attests that they have
suffered

damages

specifically,

totaling

Raymond

$444,400.00. 1

asserts

the

(Id.

following

¶

26.)

More

damages:

(1)

$240,000.000 for the loss of five beach front lots (id. ¶ 21); (2)
$59,800.00 for the loss of the investment in infrastructure (id.
¶ 22); (3) $34,600.00 for the lost benefits of permits, maps, and

1

The Court notes that although plaintiff Raymond’s affidavit
alleges a total amount of $444,400.00 in damages (Doc. #39-2, ¶
26), the actual damages alleged total $684,400.00. (See id. ¶¶
21-24.)

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advertising (id. ¶ 23); (4) $140,000 for the loss of condominium
lot A (id. ¶ 24); (5) $15,000 for the loss of condominium lot B
(id.

¶

24);

$195,000.00

for

condominium lots (id. ¶ 24).

the

loss

of

the

remaining

13

Sean Jackson also filed a Declaration

in Support of Request for Entry of Judgment (Doc. #39-1) concurring
with the total damages claimed in the declaration of Raymond
Jackson.

(Id. ¶ 6.)

Accordingly, the Court finds plaintiffs’

actual damages total $684,400.00.
Plaintiffs seek three times the amount of damages they have
suffered

pursuant

to

18

U.S.C.A.

§

1964.

The

Court

finds

plaintiffs have sufficiently alleged that defendants caused injury
to plaintiffs’ business as required for an award of treble damages.
Thus, an award of treble damages in the amount of $2,053,200.00 is
appropriate.

Although plaintiffs also request attorney’s fees and

costs, the pro se plaintiffs are not entitled to attorney’s fees
and

no

evidence

affidavits.
C.

of

costs

were

included

in

the

plaintiffs’

See Kay v. Ehrler, 499 U.S. 432, 434–435 (1991).

Shotgun Pleading

Counts II-IV incorporate by reference all of the allegations
from each count into each subsequent count.

(Doc. #1, pp. 11, 12,

14.)

“The typical shotgun complaint contains several counts, each

one

incorporating

by

reference

the

allegations

of

its

predecessors, leading to a situation where most of the counts
(i.e., all but the first) contain irrelevant factual allegations

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and legal conclusions.”

Strategic Income Fund, L.L.C. v. Spear,

Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).

The

Eleventh Circuit has consistently frowned upon shotgun pleadings
such as the one presented herein, and shotgun pleadings “exact an
intolerable toll on the trial court’s docket.”
117 F.3d 1258, 1263 (11th Cir. 1997).

Cramer v. Florida,

See also Davis v. Coca-Cola

Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th Cir. 2008)
(collecting

cases).

Accordingly,

the

Eleventh

Circuit

has

established that when faced with a shotgun pleading, a district
court should require the parties to file an amended pleading rather
than allow such a case to proceed.
1075, 1130 (11th Cir. 2001).

Byrne v. Nezhat, 261 F.3d

Therefore, the Court will dismiss

Counts II-IV because it is a shotgun pleading.
Accordingly, it is hereby
ORDERED:
1.

Pro se Plaintiffs’ Motion for Entry of Judgment (Doc.
#39) is GRANTED in part and DENIED in part as follows:
A.

A default judgment is granted as to Count I in favor
of plaintiffs;

B.

Counts

II

through

IV

are

dismissed

without

prejudice as a shotgun pleading.
C.

Plaintiffs are awarded actual damages in the amount
of $684,400.00, plus statutory treble damages in

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the

amount

of

$2,053,200.00

against

defendants

Rudolf Walcher and Miguel E. Bascope Noguera.
2.

The Clerk shall enter judgment as provided in paragraph
1,

and

also

dismiss

defendants

Asian-Pacific

Investments, Inc. and Wolf Ekkehard Ast with prejudice.
3.

The Clerk is further directed to terminate all remaining
motions, deadlines, and to close the case.

DONE and ORDERED at Fort Myers, Florida, this
of November, 2014.

Copies:
Plaintiffs
Counsel of Record

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17th

day