Eurosillas, C.A. et al v. Citigroup, Inc. et al

Filing 27

ORDER granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge Marcia G. Cooke on 1/26/2012. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-23103-Civ-COOKE/TURNOFF
EUROSILLAS, C.A., et al.,
Plaintiffs
vs.
CITIGROUP, INC., et al.,
Defendants.
_________________________________/
ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS
FOR FAILURE TO JOIN NECESSARY PARTY AND DIRECTING
PLAINTIFFS TO FILE AN AMENDED COMPLAINT
THIS MATTER is before me on Defendants’ Motion to Dismiss for Failure to Join
Necessary Party, Failure to State a Claim, or in the Alternative, Motion for More Definite
Statement and to Strike Request for Attorneys’ Fees. (ECF No. 13). I have reviewed the
arguments, the record and the relevant legal authorities. For the reasons explained in this Order,
the Motion to Dismiss is granted in part and Plaintiffs are directed to file an Amended Complaint
no later than January 27, 2012.
Background1
Plaintiffs EuroSillas, C.A. (“EuroSillas”) and Baraka de Venezuela, C.A. (“Baraka”) are
Venezuelan companies that have individual corporate business accounts with Defendant
Citibank, N.A. (“Citibank”). Plaintiff Najah Al-Rimawi De Yussef is a co-founder and 50%
shareholder of EuoSillas, and an officer/director and shareholder of Baraka. Ms. Al-Rimawi
alleges that Citibank denied her access to the corporate accounts in May 2011, and has
1

These facts are taken from the Plaintiffs’ Complaint. See Beck v. Deloitte & Touche, 144 F.3d
732, 735 (11th Cir. 1998) (“In evaluating the sufficiency of a complaint, a court must accept the

continually refused to grant her access despite her repeated requests for Citibank to do so.
Specifically, Ms. Al-Rimawi asserts that, at all times relevant to this cause of action, she was
EuoSillas’ acting President and the sole person authorized to access both the EuroSillas and
Baraka corporate accounts. Upon information and belief, Ms. Al-Rimawi alleges that Hasem
Yusseff Yussef, her estranged husband and EuroSillas’ former President, unlawfully instructed
Citibank to remove Ms. Al-Rimawi as EuroSillas’ account signatory. On June 23, 2011, Helena
Tetzeli, counsel for Ms. Al-Rimawi, sent a letter to Citibank, requesting that it suspend all
activity and access to the accounts, or alternatively, allow Ms. Al-Rimawi sole access to the
accounts. Despite Citibank’s assurances that the accounts were suspended, Ms. Al-Rimawi
contends that Mr. Yussef and/or his family continued to have account access.
On August 12, 2011, Plaintiffs filed this lawsuit in the Eleventh Judicial Circuit Court in
and for Miami-Dade County alleging causes of action for constructive trust (Count I), injunction
(Count II), breach of fiduciary duty (Count III), declaratory relief (Count IV) and accounting
(Count V), against Defendants Citibank and its parent company Citigroup, Inc. On August 30,
2011, Defendants removed the case to this Court. Following removal, the parties executed a
confidentiality agreement and agreed to stipulated protective order regarding a preliminary and
voluntary document exchange. Citibank also agreed to suspend all activity in both corporate
accounts, rendering Plaintiffs’ request for an injunction moot. Defendants now move to dismiss
Plaintiffs’ remaining claims for failure to join a necessary party and failure to state a cause of
action.
Discussion
If feasible, “[a] person who is subject to service of process and whose joinder will not
well pleaded facts as true and resolve them in the light most favorable to the plaintiff.”).

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deprive the court of subject-matter jurisdiction must be jointed as a party if: (A) in that person’s
absence, the court cannot accord complete relief among existing parties; or (B) that person
claims an interest relating to the subject of the action” and disposing of the action may “impair or
impede the person’s ability to protect the interest…” Fed. R. Civ. P. 19(a). In other words, a
person who should be joined is one who is indispensible to the litigation. Rule 19 adopts a “twopart test for determining whether a party is indispensable” to the pending litigation. Challenge
Homes, Inc. v. Greater Naples Care Ctr., 669 F.2d 667, 669 (11th Cir. 1982). A district court
must first ascertain whether the person or entity at issue is one who should be joined, if feasible.
Id. If the person should be joined but cannot be, then the court must inquire whether the
litigation may continue. Id. (citing Fed. R. Civ. P. 19(b)).2
The Complaint alleges that Mr. Yussef transferred operative control of EuroSillas to Ms.
Al-Rimawi in May 2011. The Complaint fails, however, to allege that Mr. Yussef transferred all
financial interest to Ms. Al-Rimawi as well, or what ownership rights and financial interests Mr.
Yussef has, if any, in Baraka. The Complaint and supporting exhibits also indicate that Ms. AlRimawi and Mr. Yussef are married and are possibly engaged in a marital dispute. By the
Plaintiffs’ own admission, there is “an actual, justifiable controversy as to who has authority over
the aforementioned accounts.”

(Compl. ¶ 36, ECF No. 1-1).

Taking this admission into

consideration, along with the factual circumstances and Ms. Al-Rimawi’s relationship to Mr.
Yussuf, I am left to conclude that any judgment rendered in Mr. Yussef’s absence may
potentially impact his financial and marital rights and interests.
2

Mr. Yussef is indeed an

Factors to consider in determining whether a party is indispensible include whether: (1) a
judgment rendered in the person’s absence might be prejudicial to the absent or existing party;
(2) the prejudice can be lessened or avoided by reshaping the judgment; (3) a judgment rendered
in the person’s absence will be adequate; and (4) the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder. See Fed. R. Civ. P. 19(b).

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indispensible party and his joinder to this action will not only protect his interests but will also
avoid the waste of judicial resources. Defendants concede that Mr. Yussef can be joined to this
case. If that is indeed true, then dismissal of this action is inappropriate. Rather, Plaintiffs shall
be afforded an opportunity to amend their Complaint to join Mr. Yussef and correct any other
outstanding pleading deficiencies.3 Accordingly, I hereby ORDERED and ADJUDGE that the
Motion to Dismiss (ECF No. 13) is GRANTED in part. Plaintiff is directed to file an Amended
Complaint on or before January 27, 2012. Failure to do so may result in the dismissal of this
action with and/or without prejudice. At this junction, Defendants’ challenges to the merits of
Plaintiffs’ claims are DENIED as moot.
DONE and ORDERED in chambers at Miami, Florida, this 26TH day of January 2012.

Copies furnished to:
William C. Turnoff, U.S. Magistrate Judge
Counsel of record

3

The Complaint contains several exhibits that have not been translated to English. “[I]t is clear,
to the point of perfect transparency, that federal court proceedings must be conducted in
English.” United States .v. Rivera-Roario, 300 F.3d 1, 5, 7 n.4 (1st Cir. 2002) (noting “wellsettled rule that parties are required to translate all foreign language documents into English”)’
see also Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 413-14 (1st Cir. 2000) (declining to
consider as part of summary judgment record a deposition excerpt in Spanish, where party
submitting excerpt failed to provide English translation); Krasnopivtsev v. Ashcroft, 382 F.3d
832, 838 (8th Cir. 2004) (copy of passport was properly excluded from evidence where no
English translation or certification was offered); United States v. Cruz, 765 F.2d 1020, 1023
(11th Cir. 1985) (where defendant engages in “deliberate tactical decision” not to submit English
translation of Spanish tape, he cannot complain on appeal that jury’s function was usurped when
he failed to present evidence that would have aided jury in fulfilling that function).

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