Corbacho Daudinot v. Puig Valdes et al

Filing 31

RESPONSE in Opposition re 28 Defendant's MOTION to Dismiss 24 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.
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PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO
DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM
Plaintiff, MIGUEL ANGEL CORBACHO DAUDINOT, through counsel, files this
Response to Defendant’s Motion to Dismiss his Amended Complaint and in support thereof
states:
1.

Plaintiff originally filed a complaint [DE 1] under the Torture Victim Protection

Act (“TVPA”) against the Defendants in the instant case on July 18, 2013, and subsequently
filed his First Amended Complaint [DE 10] on September 12, 2013, in response to Defendants’
Motion to Dismiss [DE 7].
2.

Defendants filed a Motion to Dismiss Plaintiff’s First Amended Complaint [DE

11], which alleged, inter alia, that the TVPA does not apply extraterritorially, that the
Complaint’s allegations did not satisfy the TVPA’s statutory definition of torture, and that the
Complaint’s allegations failed to state a claim for Secondary Liability under the TVPA.
3.

During the oral argument held on December 2, 2013, the Court focused on the

pleading requirements for secondary liability under the TVPA, intimating to both parties that at
least at the pleading stage, Plaintiff’s allegations of torture likely met the standard of torture
established by the TVPA, and noting that the ruling in Kiobel v. Royal Dutch Petroleum Co., 133
S. Ct. 1659 (2013) dealt with the Alien Tort Statute, not the TVPA, and that the solitary ruling
out of the Texas court in Murillo v. Bain, 2013 WL 1718915 (S.D. Tex. 2013) was not binding
on any other courts.

Plaintiffs’ Response to Defendant’s Motion to Dismiss (DE 28)

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4.

In this court’s Order [DE 23], the court stated that Plaintiff “alleges only that

‘Defendants had entered into a conspiracy and a joint plan with the Cuban government to
effectuate a variety of purposes that were of mutual benefit to Defendants and the Cuban
government”, and that “such vague and conclusory allegations of conspiracy with the Cuban
government are insufficient because they do not raise the right to relief… above the speculative
level”.
5.

In order to “address the pleading deficiencies that the Court has identified”, the

Court granted the Plaintiff leave to file a Second Amended Complaint, instructing the
Defendants that if they choose to file a Motion to Dismiss the Second Amended Complaint, not
to re-file or re-submit those arguments made to the Court during previous motions, since those
motions will be considered.
6.

Despite the court’s directive not ro re-submit previous arguments, Defendants

filed a Motion to Dismiss [DE 28] which once again alleges that the Complaint’s allegations
failed to state a claim for Secondary Liability under the TVPA, that the TVPA does not apply
extraterritorially, that the Complaint’s allegations did not satisfy the TVPA’s statutory definition
of torture.
7.

As directed by the Court, the Plaintiff shall rely on the arguments he propounded

in his Response in Opposition to Defendant’s Motion to Dismiss [DE 12], his Sur-Reply in
Opposition to Defendant’s Reply [DE 20], his oral argument on December 2, 2013 and the
arguments advocated in this Response.
ARGUMENT
When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court
construes the complaint in the light most favorable to the plaintiff and accepts all well-pled facts
alleged by in the complaint as true. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.
2009). The Supreme Court held in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) that “to survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” 1 Id. (quoting Twombly,
550 U.S. at 570, 127 S.Ct. 1955). And the court in Twombly stated that factual allegations in a
1

The court in Iqbal held that while Rule 8 of the Federal Rules of Civil procedure does not require detailed factual
allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129
S.Ct. at 1949

Plaintiffs’ Response to Defendant’s Motion to Dismiss (DE 28)

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complaint do not need to be detailed but, “must be enough to raise a right to relief about the
speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555. 2 See also Mamani v. Berzain, 654 F.3d 1148, at *3
(11th Cir. 2011). The inferrence of liability reached in the complaint need not be the only
reasonable conclusion drawn by the facts alleged in the complaint, but may be one of many
reasonable readings established by the Plaintiff when viewed in the light most favorable to the
Plaintiff. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1249 (11th Cir., 2005)
In reference to the elements required for a TVPA claim, the undisputed facts are as
follows: Plaintiff is an individual, who is suing Defendants in a civil action, for torture he
suffered due to the actions of Defendants, who were acting under actual or apparent authority, or
color of law. 3 The state action requirement of the TVPA is satisfied by the fact that the
individuals subjecting Plaintiffs to torture are the prison guards and officers of the Cuban
government.
In order to hold Defendants liable for conspiracy, Plaintiff needs to plead that (1) two or
more persons agreed to commit a wrongful act, (2) [Defendant] joined the conspiracy knowing
of at least one of the goals of the conspiracy and intending to help accomplish it, and (3) one or
more of the violations was committed by someone who was a member of the conspiracy and
acted in furtherance of the conspiracy. Cabello v. Fernandez-Larios, 402 F.3d 1148, 1159 (11th
Cir. 2005). See Chiquita 211 WL 2169873.
To find aiding and abetting liability, Plaintiff must plead that (1) Cuba committed an
international-law violation (in this case prolonged arbitrary detention and/or torture), (2)
Defendants acted with the purpose or intent to assist in that violation, and (3) Defendants’
assistance substantially contributed to Cuba’s commission of the violation. See Cabello 402 F.3d
and Chiquita 211 WL 2169873.
The facts presented in the Second Amended Complaint are more than unadorned
accusations. A signed affidavit from an eyewitness, Yunior Despaigne, was incorporated as part

2

A complaint should only be dismissed if “it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim would entitle him to relief” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242,
1246 (11th Cir., 2005)(quoting Jones v. Am. Gen. Life & Accident Ins. Co., 370 F.3d 1065, 1069(11th Cir. 2004))
3
The Torture Victims Protection Act, 28 U.S.C. §1350(2)(a) establishes that “an individual who, under actual or
apparent authority, or color of law, of any foreign nation subjects an individual to torture, shall, in a civil action, be
liable for damages to that individual.”

Plaintiffs’ Response to Defendant’s Motion to Dismiss (DE 28)

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of the Complaint as Exhibit D The undisputed facts, as presented and accepted as true in the
Second Amended Complaint, are as follows:
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Puig joined the conspiracy to incarcerate and torture individuals in September or October
2009, after he was sanctioned from playing baseball after he was caught attempting to
leave Cuba.
After he was sanctioned, he met with Higinio Vélez (“Velez”), the Cuban government’s
commissioner of baseball, an extremely high ranking official, who told Puig that if Puig
worked with the state security to accuse people of Human Trafficking, he would
guaranteed that Puig would get back on the national team and the National Series team.
Puig met with Vélez four or five times.
Puig accepted Vélez’s offer and accused at least six individuals, including Plaintiff,
whose names were provided in the Complaint as Ivan Hernandez Concepcion, Paulito,
Odalys Diaz Gonzalez, Armando Muñis, and Alexander Orozco Noa, of Human
Trafficking.
Puig admitted to Despaigne that he was working with the Cuban government to accuse
people of Human Trafficking in order to get back on the team.
Puig admitted to Despaigne the he knew that Human Trafficking was a political crime
and that the reason he was accusing people of Human Trafficking was because it was
very serious and it was the only crime that State Security cared about.
Puig stated that the more people he accused of Human Trafficking, the better it was be
for him.
Puig admitted to Despaigne that he knew that the people he accused were being beaten,
and held in solitary confinement for days without food and water, and that their lives
were being threatened, but that he intended to testify against them anyway.
Puig openly demonstrated disregard for the torture suffered by those he sent to jail by
stating that the persons he accused “probably” wouldn’t be killed because “guards hardly
ever beat prisoners to death anymore.”
Puig openly admitted to Despaigne that he was an informant to the government, and he
boasted of the number of people he had sent to prison.
Puig was rewarded for his participation with Cuban state security by being offered lavish
gifts, such as a week’s stay in a lavish mansion that was fully stocked with food and
alcohol.
After accusing several people of Human Trafficking, Puig was readmitted into the Cuban
baseball team.
Puig and his mother, Valdez, worked with INDER government officials, named
ROBERTO MARTINEZ AROCHE (“Aroche”), Deputy Director of the Provincial Sports
in Cienfuegos, and LIVAN ANGARICA GONZALEZ (“Gonzalez”), the coach of Cuban
national Series baseball team of Cienfuegos, as well as members of the Cuban state
security, such as YASSER BRITO MOYA, to accuse Plaintiff and Alexander Orozco
Noa of Human Trafficking.
Puig and His mother signed declarations against Plaintiff and Alexander Orozco Noa of
Human Trafficking (Exhibits A and B, respectively).
Puig singled out Plaintiff in a photograph for State Security (Exhibit E)
Puig and his mother testified against Plaintiff and Alexander Orozco Noa in trials
accusing them of Human Trafficking.

Plaintiffs’ Response to Defendant’s Motion to Dismiss (DE 28)

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•

The Cuban trial against Plaintiff occurred after many months of torture in prison, where
the torture of the Plaintiff was apparent to Defendants, who testified against him in court.
The allegations presented by Plaintiff in his Complaint do more than assert generalized

allegations of collusion between Cuban authorities and the Defendants. The Plaintiff provides the
date when the conspiracy began, the dates on which the Valdes and Puig accused the Plaintiff of
offering to smuggle Puig out of Cuba, Puig’s admission that he knew that the severity of the
treatment the individuals he accused were receiving in prison, Puig’s admission of working with
the state security to secure his position on the baseball team, the dates that Defendants appeared
in court and the testimonies that they provided on those dates, the actions that Valdes and Puig
took in furtherance of the conspiracy or to aid and abet the Cuban government in its wrongful
acts, the Defendants’ own words and signed accusations, along with the names of several state
actors from the DCSE, the coach for the National Team, and the court system. In addition,
Plaintiffs have provided a harrowing, comprehensive and disturbing account of the acts
committed against them in the Cuban prison by the authorities and its lasting effects on them.
Respectfully Submitted,
s/Kenia Bravo
Kenia Bravo, Esq., FBN 68296

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this document was filed in federal
court using CM/ECF on March 7, 2014.
s/Kenia Bravo
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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]

Plaintiffs’ Response to Defendant’s Motion to Dismiss (DE 28)

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