Corbacho Daudinot v. Puig Valdes et al

Filing 16

MOTION to Strike 15 Reply to Response to Motion to Dismiss by MIGUEL ANGEL CORBACHO DAUDINOT. Responses due by 11/21/2013 (Gonzalez, Avelino)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIGUEL ANGEL CORBACHO DAUDINOT
Plaintiff,

CASE NO. 13-cv-22589-KMW

v.
YASIEL PUIG VALDES a/k/a YASIEL PUIG
and MARITZA VALDES GONZALEZ.
Defendants.
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PLAINTIFF’S MOTION TO STRIKE PORTIONS OF DEFENDANTS’ REPLY [DE 15]
FOR DEFENDANTS’ FAILURE TO COMPLY WITH LOCAL RULE 7.1(c)
Plaintiff, by and through his attorneys, file this Motion to Strike Portions of Defendants’
Reply [DE 15] for Defendants’ failure to comply with the strictures of Local Rule 7.1(c), and in
support thereof state:
1.

Defendants filed a Motion to Dismiss for Failure to State a Claim, stating, among

other things, that Plaintiff claims against Defendants must be dismissed because:
a. The TVPA was barred under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.
1659, 185 L.Ed.2d 671 (2013). They cited an unpublished district court case
opinion out of the state Texas, Murillo v. Bain, CIV.A. H-11-2373, 2013 WL
1718915 (S.D. Tex. 2013) to support their contention that the TVPA was
barred by Kiobel. Defendants exhaustively defined what “extraterritoriality”
meant in their Motion (DE 11, pp. 3-5) as:
i. “The Supreme Court recently addressed the issue of the extraterritorial
application of a federal statute – that is, “whether a claim may reach
conduct occurring in the territory of a foreign sovereign” – in Kiobel v.
Royal Dutch Petroleum Co., 133 S. Ct. 1659 (April 17, 2013)” (DE 11, p.
4, ¶ 1).

ii. “When a statute gives no clear indication of an extraterritorial application,
it has none … and reflects the presumption that United States law governs

Plaintiff’s Motion to Strike Portions of Defendants’ Reply [DE 15]

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domestically but does not rule the world.” (DE 11, p. 4, ¶2) (quoting
Kiobel).

iii. The TVPA does not provide any indication – much less a “clear
indication” – that it is to be applied extraterritorially. Accordingly, the
TVPA does not apply to conduct “occurring in the territory of a foreign
sovereign,” such as the conduct alleged here, and plaintiff’s claim must
be dismissed. (DE 11, p. 4, ¶2).

iv. “This case has nothing to do with the United States. The parents of a
deceased Honduran are suing a Honduran politician, complaining about
the Honduran army’s behavior at a Honduran airport. American laws like
the Alien Tort Statute and the Torture Victim Protection Act are
presumed not to apply beyond the borders of the United States” (DE 11,
p. 5, ¶1) (quoting Murrillo)

b. The Plaintiff does not meet the TVPA’s “severity/purpose standard” that
was set by Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82,
92 (D.C. Cir. 2002) and reaffirmed in Simpson v. Socialist People’s Libyan
Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003). Defendants cited only
one additional case, again out of the district court of Texas, Weisskopf v.
United Jewish Appel-Fed’n of Jewish Philanthropies of New York, Inc., 889 F.
Supp. 2d 912, 925 (S.D. Tex. 2012), to define the standard. (DE 11, pp.5-8).
c. Plaintiff fails to plead secondary liability [DE 11, pp. 8]. Plaintiff—in order
to hold Defendants liable through secondary liability under the TVPA for the
injuries suffered by them in Cuban prison—had to plead that Defendants
“specifically intended that Plaintiffs be tortured” in Cuba (DE 12, p.8),
although Defendants do admit that Plaintiff’s Amended Complaint stated that
the conspiracy entered into by Defendants had several purposes, one of which
was the torture of Plaintiff (DE 15, p. 9). Defendants state, inter alia, that:
i. The complaint must provide factual allegations that raise the right to
relief above the speculative level (DE 11, p 8).

ii. The amended complaint here fails to provide the requisite factual
allegations regarding defendants’ alleged “purpose or intent to facilitate
the commission of the specific offenses alleged (DE 11, p. 9).

Plaintiff’s Motion to Strike Portions of Defendants’ Reply [DE 15]

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iii. The amended complaint alleges in conclusory fashion that defendants
“acted with the intent to assist the government,” but offers nothing by
way of factual allegations (DE 11, p. 9).

iv. Plaintiff offer speculation and Speculation is insufficient. (DE 11, p. 9).
v. Plaintiff does not actually plead conspiracy with the Cuban
government, but only with his mother, which does not suffice (DE 11,
pp.9-10).
vi. Plaintiff must allege a conspiracy with the Cuban government, which
they do not do (De 11, p. 10).
2.

On October 31, 2013, Defendants filed a Reply in Support of Motion to Dismiss

for Failure to State a Claim [DE 15], which, barring some exceptions that will be addressed
within this motion, does not comply with Local Rule 7.1(c). Defendants’ Reply states that
Plaintiff’s claims against Defendants must be dismissed because:
a. The TVPA was barred under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.
1659, 185 L.Ed.2d 671 (2013). While some of Defendants’ arguments are
clearly in answer to Plaintiff’s Response, the court should strike the portions
of the Reply contained in DE 15, p.4,¶2 – p.5,¶1, in which the Defendant
provides a new interpretation for “extraterritoriality”. By providing a novel
(and contradictory) interpretation to extraterritoriality, despite having
provided a different definition of that concept in their motion to dismiss,
Defendants’ do not address a matter raised by Plaintiff in his Response, while
simultaneously depriving the Plaintiff of its right to address this interpretation,
which should have been raised in their motion. Plaintiff rightly responded to
Defendants’ Motion to Dismiss using the definition of extraterritoriality as
provided by Defendants in that Motion, accepting their definition on its face,
without raising any new issues of interpretation. Defendants now seek to
essentially move the goal post by altering their original interpretation, leaving
Plaintiff without a means by which he may address this new interpretation.
b. Plaintiff fails to meet the TVPA’s “severity/purpose standard”. Defendants
filed a proper Reply to this issue. (DE 15, pp. 4-5)

Plaintiff’s Motion to Strike Portions of Defendants’ Reply [DE 15]

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c. Plaintiff fails to plead secondary liability (DE 15, pp. 6). With the exception
of the portion of the Reply where Defendant distinguishes the instant case
from that of Garcia v. Chapman, Garcia v. Chapman, 911 F. Supp. 2d 1222
(S.D. Fla. 2012) (DE 15, p.7, ¶3 – p.8, ¶1), Defendants simply reargue the same
position they set out in their motion to Dismiss: that Plaintiff fails to plead with

factual specificity that Defendants and the Cuban government had an
agreement (DE 15, p.6, ¶2 – p.7, ¶2).

II.

ARGUMENT

Local Rule 7.1(c) states, inter alia, that a “reply memorandum shall be strictly limited to
rebuttal of matters raised in the memorandum in opposition without reargument of matters
covered in the movant’s initial memorandum of law.”
As noted above, some of Defendants reply arguments are valid replies to Plaintiff’s
Response, while other arguments are either simply rearguments of issues already addressed in
their Motion to Dismiss or are new arguments that are not rebuttals of matters raised in the
Plaintiff’s memorandum in opposition to the Motion.
Specifically, Defendants’ new interpretation of “extraterritoriality” (DE 15, p.4,¶2 –
p.5,¶1), which arguably contradicts the definition Defendant provided in their Motion to
Dismiss, is not a rebuttal of matters raised in Plaintiff’s opposition memorandum because
Plaintiff’s opposition memorandum incorporated the definition of “extraterritoriality” provided
to them by Defendants Motion and, using that definition, stated the presumption against
extraterritoriality it did not apply to claims raised under the TVPA. Defendants’ refocusing on
the “extraterritoriality” interpretation to, in essence, create a new standard than the one plainly
set out in their Motion to Dismiss, essentially moves the goal posts for the Plaintiff’s response
and deprives him of the ability to defend his position. Had Defendants raised this novel
definition of “extraterritoriality” in the original motion—which was the proper place to raise it—
then Plaintiff could had addressed it in his Response.
Next, Defendants reargue the same position they set out in their Motion to Dismiss when
it comes to the issue of secondary liability under the TVPA. As they did with their Motion to
Dismiss, Defendants again claim that Plaintiff did not plead secondary liability with detailed
factual specificity that Defendants had an agreement with the Cuban government. Here the

Plaintiff’s Motion to Strike Portions of Defendants’ Reply [DE 15]

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Defendants merely point out Plaintiff’s Response argument, and then simply rehash the
arguments they made in their Motion to Dismiss (DE 15, p.6, ¶2 – p.7, ¶2).
Replies are not intended to serve as “gotcha” devices that surprise the opposing party
with novel interpretations of fact or law that could have been raised in the original motion, nor
are they intended to serve as exclamation points to the moving party’s initial motion. Replies are
supposed to provide the court only with rebuttals to matters raised in the non-moving party’s
Response so long as those rebuttals are not merely rearguments of what was stated in the original
motion.
WHEREFORE, Since the specified portions of the Defendants’ motion neither rebuts
matters raised in the opposition memorandum without reargument of matters covered in the their
initial memorandum of law, the court should strike the following partions of Defendants’ Reply:
DE 15, p.4,¶2 – p.5,¶1, and p.6, ¶2 – p.7, ¶2, as well as any other portion of Defendants’ Reply
the court deems does not comply with the letter or the spirit of the Rules.
Respectfully Submitted,
s/Kenia Bravo
Kenia Bravo, Esq., FBN 68296

_

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this document was filed in federal
court using CM/ECF on November 4, 2013.
s/Kenia Bravo
_
Kenia Bravo, Esq., FBN 68296
Avelino J. Gonzalez, Esz. FBN 75530
Law Offices of Avelino J. Gonzalez, P.A.
6780 Coral Way, Miami, Florida 33155
Ph: 305-668-3535; Fax: [phone]
E-mail: [e-mail]

Plaintiff’s Motion to Strike Portions of Defendants’ Reply [DE 15]

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