Corbacho Daudinot v. Puig Valdes et al

Filing 20

REPLY to Response to Motion re 11 MOTION to Dismiss 10 Amended Complaint, filed by MIGUEL ANGEL CORBACHO DAUDINOT. (Bravo, Kenia)

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

CASE NO. 1:13-cv-22589-KMV

v.
YASIEL PUIG VALDES a/k/a YASIEL PUIG
and MARITZA VALDES GONZALEZ.
Defendants.
______________________________________/
PLAINTIFF’S SUR-REPLY MEMORANDUM IN OPPOSTION
TO DEFENDANT’S MOTION TO DISMISS COMPLAINT
Plaintiff, MIGUEL ANGEL CORBACHO DAUDINOT, through counsel, files this SurReply Memorandum in opposition to Defendant’s Motion to Dismiss his Complaint and in
support thereof states:
I.

INTRODUCTION

Defendant filed a Motion to Dismiss the instant case [DE 11] (“the Motion”) proposing
the premise that Plaintiff’s claim under the TVPA must fail because (1) “the TVPA does not
apply to a claim that is wholly unconnected to the United States”; (2) that “the acts described in the
Amended Complaint do not satisfy the TVPA’s definition of torture”; and, (3) “the amended
complaint fails to properly allege [for purposes of establishing secondary liability] that defendants’
actions were intended to result in plaintiff’s torture”. (DE 11, p. 2)

Plaintiff has successfully stated a claim under the TVPA. Plaintiff addresses the issues
raised in Defendants’ Motion as they raised them. First, the presumption against extraterritorial
application does not apply to the TVPA. Second, Plaintiff satisfies the definition of torture as set
by the TVPA—including both the “severity standard” and “purpose standard” as set out by the
statute and the case law. Lastly, Plaintiffs have stated a plausible claim for relief under theories
of secondary liability that is filled with more than merely unadorned statements, but with facts,

Plaintiff’s Response to Defendant’s Motion to Dismiss [DE 11]

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including names, dates, details, documents, documents containing the Defendants’ own
signatures, actions, and events. 1
II.

ARGUMENT

The TVPA Overcomes the Presumption against Extraterritoriality
In defining “extraterritoriality” in the Motion Defendant cited only Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659 (U.S. 2013) 2, and quoted the following from that case: “when a
statute gives no clear indication of an extraterritorial application, it has none … and reflects the
presumption that United States law governs domestically but does not rule the world.” (DE 11, p. 4).
Notwithstanding Defendants’ earlier definition, they narrowed their definition in their Reply by
stating that the presumption against territoriality can only be overcome when the claims “touch and
concern the territory of the United States” with “sufficient force” (DE 15, p. 2), while ignoring the
rest of the argument provided by both the Motion and by Kiobel, upon which Defendants rely.

According to Kiobel, the presumption “is typically applied to discern whether an Act of
Congress regulating conduct applies abroad,” but that “its underlying principles constrain courts
when considering causes of action that may be brought under the ATS” because, unlike the
TVPA, which provides a specific cause of action, the ATS simply provides jurisdiction for the
court to hear causes actions arising from torts in violation of international law, limited only by
the Supreme Court’s finding in Sosa v. Alvarez–Machain, 124 S.Ct. 2739, 159.
In deciding whether the Statute overcame the presumption against territoriality, the Kiobel
court looked to “the text, history, or purposes of the ATS”. The court stated that in order “to run

interference in ... a delicate field of international relations there must be present the affirmative
intention of the Congress clearly expressed.”, and that “foreign policy consequences” must be
“clearly intended by the political branches”. 133 S. Ct. at 1664 (emphasis added). The court
hammered home the point that “Congress can indicate that it intends federal law to apply to
conduct occurring abroad” (citing 18 U.S.C. § 1091(e) (2006 ed., Supp. V) (providing
jurisdiction over the offense of genocide “regardless of where the offense is committed”). Id. at
1665. The court need not only consider the words of the Act themselves, but also ““[a]ssuredly
1

If the court should find that Plaintiffs have not plead with sufficient details the hardships they have suffered to
plead torture under the TVPA, they respectfully request this court allow them to Amend the instant complaint in
order to meet the requirement.

2

Defendant also cited Murillo, whose decision was based on the Kiobel decision.

Plaintiff’s Response to Defendant’s Motion to Dismiss [DE 11]

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context can be consulted” in determining whether a cause of action applies abroad” and turns to
the Congressional Record, if any, to determine the purpose in passing the law, and if Congress
intended such a law to apply extraterritorially. Id. at 1668, (citations omitted).
Only after the court has concluded that a statute was not intended to apply
extraterritorially—by conducting an exhaustive analysis of the language of the statute, the
history/context of the law, and the Congressional Record to establish intent and purpose—must
the claims in a given action “touch and concern the territory of the United States… with
sufficient force to displace the presumption against extraterritorial application.” Id. at 1669.
Defendant’s argument is tantamount to declaring all claims must overcome the presumption
against extraterritoriality, notwithstanding Congressional Intent for a law to on foreign soil. That
argument is plainly irrational, since it would serve to negate the legislative body’s intent.
There is sufficient of evidence, both in the body of the TVPA and in the Congressional
Record as provided by Plaintiffs in their Response to the Motion that blatantly declares that the
TVPA was intended to apply extraterritorially.
Complicity and Agreement by the Cuban Government Was Explicitly Plead
Plaintiff sufficiently pled conspiracy between the government and the Defendants,
irrespective of each side’s individual motivation for joining the conspiracy. Outside of pleading
in detail the government’s well-documented pattern of utilizing its athlete’s as informants in a
“snitch network” orchestrated by the DCSE and the INDER (both governmental agencies) and
Cuba’s focus on rooting out the pilfering of their athletes by the United States and the Dominican
Republic, the First Amended Complaint specifically details how Puig worked with the state
security to continue to bait the Plaintiff, and how he and his mother worked directly with the
INDER’s deputy director in Cienfuego and the Cienfuego’s baseball team’s coach in order to
make the accusation against the Plaintiff. Plaintiffs did provide dates, times, names, and how
each participant acted in the conspiracy. Those allegations, in addition to the fact that it was the
Cuban government, with the aid and cooperation of the Defendants, that arrested, detained, tried,
and tortured Plaintiff, are more than enough to allege conspiracy sufficient to survive a motion
for summary judgement.

Plaintiff’s Response to Defendant’s Motion to Dismiss [DE 11]

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WHEREFORE, Plaintiff respectfully requests that this court enter an order denying
Defendants’ Motion to Dismiss.
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 6, 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 Response to Defendant’s Motion to Dismiss [DE 11]

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