Corbacho Daudinot v. Puig Valdes et al

Filing 7

Defendant's MOTION to Dismiss 1 Complaint,, and Memorandum of Law by YASIEL PUIG VALDES, MARITZA VALDES GONZALEZ. Responses due by 9/9/2013 (Santini, Sean)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 1:13-cv-22589-KMW
MIGUEL ANGEL CORBACHO
DAUDINOT
Plaintiff,
v.
YASIEL PUIG VALDES a/k/a
YASIEL PUIG and MARITZA
VALDES GONZALEZ,
Defendants.
__________________________/
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
Defendants, Yasiel Puig Valdes a/k/a Yasiel Puig (“Puig”) and Maritza Valdes
Gonzalez (“Valdes”), pursuant to Fed R. Civ. P. 12(b)(6), hereby move to dismiss
plaintiffs’ complaint [DE #1] for failure to state a claim upon which relief may be granted.
The grounds for this motion are set forth in the following memorandum of law.
MEMORANDUM OF LAW
Introduction
Taking plaintiff at his pleadings, this is an action brought by a Cuban citizen who
was arrested in Cuba, was tried and convicted in Cuba, and is currently serving a prison
sentence in Cuba, all as a result of allegedly false testimony given by defendants in
Cuba. Plaintiff alleges that he would not have been arrested and convicted but for
defendants’ allegedly false testimony during the Cuban government’s investigation and
trial of plaintiff, and that, therefore, defendants (who are also Cuban citizens) are liable

Corbacho v. Puig and Gonzalez
Case No. 1:13-cv-22589-KMW

under the Torture Victim Protection Act (“TVPA”), for aiding and abetting and conspiring
with the Cuban government in its harsh treatment of plaintiff while he was in the Cuban
government’s custody. 1
The complaint must be dismissed for at least three reasons. First, the TVPA
does not apply to a claim that is wholly unconnected to the United States, as is plaintiff’s
claim here. Second, the complaint’s allegations regarding plaintiff’s treatment in the
Cuban prison system do not satisfy the TVPA’s definition of torture.

Third, the

complaint fails to allege, as it must in order to state a claim for secondary liability under
the TVPA, that defendants’ actions were intended to result in plaintiff’s torture.
I.

Legal Standard.
A complaint must allege “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this
“plausibility standard,” plaintiff must plead “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must contain “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
The complaint here falls woefully short of this standard. Indeed, when stripped of
its conclusory allegations of conspiracy and aiding and abetting, the complaint says
nothing about defendants other than that they allegedly falsely testified during a criminal
1

The TVPA provides, in part: “An individual who, under actual or apparent authority, or color of
law, of any foreign nation – (1) subjects an individual to torture shall, in a civil action, be liable
for damages to that individual.” Torture Victim Protection Act § 2(a), Pub. L. No. 102-256, 106
Stat. 73 (1992) (codified at 28 U.S.C. § 1350 (Historical and Statutory Notes)).
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investigation and trial in Cuba. These allegations, even if true (and, to be clear, they are
not true), do not state a claim for relief under the TVPA.
II.

The Complaint’s Allegations Do Not Warrant the Extraterritorial Application
of the TVPA.
The complaint’s allegations involve conduct that occurred exclusively in Cuba

and has no connection with the United States. Specifically, the complaint alleges that a
Cuban citizen was wrongfully arrested, tired and convicted in Cuba based on
purportedly false testimony given by two Cuban citizens during a criminal investigation
and trial in Cuba. (Compl. ¶¶ 33, 36, 67-70, 72-73, 86-87, 89-90, 92-96, 200-215.) In
light of this, the court’s first task is to determine whether the TVPA even applies here.
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). In Kiobel, a group of Nigerian nationals filed suit against
several multinational oil companies under the Alien Tort Statute (“ATS”), 28 U.S.C. §
1350, alleging that the corporations aided and abetted the Nigerian government in
committing violations of “the law of nations” in Nigeria. Id. at 1662.
The Supreme Court affirmed the Second Circuit’s dismissal of plaintiffs’ claims,
holding that, “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.” Id. at 1664 (internal citations and quotes omitted). The
TVPA does not provide any indication – much less a “clear indication” – that it is to be
applied extraterritorially. See TVPA, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified
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at 28 U.S.C. § 1350 (Historical and Statutory Notes)). 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. See Kiobel, 133 S. Ct. at 1664.
Although Kiobel was decided a scant four months ago, already one district court
has expressly relied on it to dismiss a TVPA claim on the ground that the statute does
not apply extraterritorially. Murillo v. Bain, 2013 WL 1718915 (S.D. Tex. April 19, 2013).
In Murillo, a Honduran couple sued the president of Honduras under the TVPA for the
killing of their son at a political rally in Honduras.

The district court, citing Kiobel,

dismissed plaintiff’s case on extraterritoriality grounds, noting that:
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.
Id. at *3 (emphasis added). Because this case, too, has nothing to do with the United
States, the TVPA does not apply and the complaint must be dismissed.
III.

The Complaint’s Allegations Do Not Satisfy the TVPA’s Statutory Definition
of Torture.
Even if the court were inclined to apply the TVPA extraterritorially to plaintiff’s

claim, the complaint must still be dismissed because its factual allegations fail to satisfy
the TVPA’s statutory definition of torture.
The TVPA defines “torture,” in part, as:
[A]ny act, directed against an individual in the offender’s
custody or physical control, by which severe pain or
suffering (other than pain or suffering arising only from or
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inherent in, or incidental to, lawful sanctions), whether
physical or mental, is intentionally inflicted on that
individual[.]
TVPA § 3(b), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350
(Historical and Statutory Notes)) (emphasis added).
Courts interpreting this language have consistently noted that the TVPA’s
“definition of torture includes a severity requirement that is crucial to ensuring that the
conduct proscribed by. . . the TVPA is sufficiently extreme and outrageous to warrant
the universal condemnation that the term ‘torture’ both connotes and invokes.” Simpson
v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003)
(internal citations and quotes omitted) (dismissing claim for torture as that term is used
in the TVPA); Weisskopf v. United Jewish Appeal-Federation of Jewish Philanthropies
of New York, Inc., 889 F. Supp. 2d 912, 925 (S.D. Tex. 2012) (dismissing TVPA claim
on the ground that the conduct described in the complaint did not meet the statute’s
definition of torture).
As the court in Simpson explained, not even acts that “reflect a bent toward
cruelty on the part of the perpetrators” necessarily satisfy the TVPA’s definition of
torture:
[T]orture does not automatically result whenever individuals
in official custody are subjected even to direct physical
assault. Rather, torture is a label that is usually reserved
for extreme, deliberate and unusually cruel practices, for
example, sustained systematic beating, application of
electric currents to sensitive parts of the body, and tying
up or hanging in positions that cause extreme pain.

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Simpson, 326 F.3d at 234 (emphasis added), citing, Price v. Socialist People’s Libyan
Arab Jamahiriya, 294 F.3d 82, 92–93 (D.C. Cir. 2002).
The court in Price noted that:
The critical issue is the degree of pain and suffering that the
alleged torturer intended to, and actually did, inflict upon the
victim. The more intense, lasting, or heinous the agony, the
more likely it is to be torture.” See S. Exec. Rep. No. 10130, at 15 (“[I]n order to constitute torture, an act must be a …
of an extremely cruel and inhuman nature, specifically
intended to inflict excruciating and agonizing physical or
mental pain or suffering.”)... [T]orture does not
automatically result whenever individuals in official
custody are subjected even to direct physical assault.
Not all police brutality, not every instance of excessive force
used against prisoners is torture[.]
Price, 294 F.3d at 93 (bold added, italics in original) (holding that “plaintiffs must allege
more than that they were abused” in order to survive a motion to dismiss). Absent from
the complaint here are any allegations describing acts of an “extremely cruel and
inhuman nature, specifically intended to inflict excruciating and agonizing physical or
mental pain and suffering,” as required by the TVPA. See Price, supra.
Instead, plaintiff vaguely alleges that he suffered “random beatings,” (Compl. ¶
80.a), but provides no particulars as to these alleged beatings, as he must in order to
defeat a motion to dismiss. Price, 294 F.3d at 93-94 (“[P]laintiffs’ complaint offers no
useful details about the nature of the kicking, clubbing, and beatings that plaintiffs
allegedly suffered. As a result, there is no way to determine from the present complaint
the severity of plaintiffs’ alleged beatings – including their frequency, duration, the parts
of the body at which they were aimed, and the weapons used to carry them out – in
order to ensure that they satisfy the TVPA’s rigorous definition of torture. In short, there
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is no way to discern whether plaintiffs’ complaint merely alleges police brutality that falls
short of torture. Thus, the facts pleaded do not reasonably support a finding that the
physical abuse allegedly inflicted by Libya evinced the degree of cruelty necessary to
reach a level of torture.”); Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242,
1253 (11th Cir. 2005) (affirming district court’s dismissal of TVPA claims based on
intentionally inflicted physical pain and suffering where the allegations regarding such
physical pain and suffering – e.g., plaintiff was “tortured with physical violence” – were
conclusory).
Other than the impermissibly vague claim that plaintiff was subject to “random
beatings,” the complaint alleges what can, at most, be described as harsh prison
conditions – namely, that plaintiff was: placed in solitary confinement in a windowless
cell, fed spoiled food, deprived of “sun and open air,” regularly confined to an
overcrowded and unsanitary cell, denied medical care, allowed visitors only one hour a
month, subjected to the confiscation of food and treats brought to him by his family, and
arbitrarily transferred to a prison away from his family. (Compl. ¶ 80.b – j.) Prison
conditions in Cuba are no doubt harsh.

Claiming to have endured harsh prison

conditions, however, does not suffice to state a claim under the TVPA. Rather, plaintiff
must allege facts demonstrating that a state official’s conduct “rose to such a level of
depravity and caused … such intense pain and suffering as to be properly classified as
torture.” Id. at 94. Plaintiff has not done so.
Plaintiff has also failed to allege that the so-called torture was intentionally
inflicted on him for a specific purpose, as required by the TVPA. TVPA § 3(b)(1) (torture

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must be “intentionally inflicted … for such purposes as obtaining from that individual or a
third person information or a confession, punishing that individual for an act that
individual or a third person has committed or is suspected of having committed,
intimidating or coercing that individual or a third person, or for any reason based on
discrimination of any kind”).
Plaintiff not only fails to allege that his “torture” was for a specific purpose, he
actually appears to allege the opposite – namely, that his treatment at the hands of the
Cuban government was not intended for any particular purpose, but is simply the way
all Cuban prisoners are treated as a matter of course. (See, e.g., Compl. ¶ 186 (“All
prisoners are subject to malnourishment, scarcity of food, inadequate medical care,
overcrowded … cells”), ¶ 187 (“dissidents,” like plaintiff, are punished by “being kept
imprisoned in their cells for 23 out of 24 hours a day, by beatings, by arbitrary prison
transfers …, by being served food that is spoiled … by being deprived of sunlight … and
by being placed in solitary confinement)”.)
Because the acts described in the complaint do not meet the TVPA’s stringent
definition of torture and because plaintiff does not allege that he was subjected to those
acts for a special purpose (as opposed to being treated the way all Cuban dissident
prisoners are treated), the complaint fails to state a claim under the TVPA and must be
dismissed.

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IV.

The Complaint’s Allegations Fail to State a Claim for Secondary Liability
under the TVPA.
Hardly a model of clarity (or brevity), the complaint’s sole count attempts to state

a claim against defendants for “aiding and abetting” and “conspiring with” the Cuban
government to torture plaintiff in violation of the TVPA. (See Compl. at ¶¶191-227 and
228-235.)

Even if the court were inclined to apply the TVPA extraterritorially and

overlook plaintiff’s abject failure to allege conduct that satisfies the TVPA’s definition of
torture, the complaint still must be dismissed because plaintiff has failed to state a claim
under the TVPA based on secondary liability.
In order to state a claim against defendants for secondary liability for violation of
the TVPA, plaintiff must allege that defendants assisted or conspired with the Cuban
government with the purpose or intent to facilitate the commission of the specific
offenses alleged. In re Chiquita Brands Int’l, Inc. Alien Tort Statute and Shareholder
Derivative Litig., 792 F. Supp. 2d 1301, 1343 (S.D. Fla. 2011)

Importantly, vague and

conclusory allegations of secondary liability do not suffice, rather the complaint must
provide factual allegations that raise the right to relief above the speculative level.
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1270 (11th Cir. 2009) (directing the
district court to dismiss TVPA claims for failure to state a claim upon which relief may be
granted), abrogated on other grounds by Mohamad v. Palestinian Auth., 132 S. Ct.
1702 (2012).
The complaint here fails to provide the requisite factual allegations regarding
defendants’ alleged “purpose or intent to facilitate the commission of the specific
offenses alleged.” Instead, the complaint alleges in conclusory fashion that defendants
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“acted with the intent to assist the government,” (Compl. ¶ 231), but offers nothing by
way of factual allegations. Plaintiff attempts to fill this void with speculation by claiming
that defendants must have known that plaintiff would be tortured because, well,
everybody knows that Cuba’s legal system does not afford due process and its prison
conditions are abysmal.

(See, e.g., Compl. ¶¶ 219 - 223.)

Such speculation is

insufficient. Sinaltrainal, 578 F.3d at 1270 (directing dismissal of secondary liability
claim under the TVPA where “plaintiffs’ vague and conclusory allegations … fail to detail
any factual allegations to raise a right to relief above the speculative level.”)
The crux of plaintiff’s claim here is that defendants “entered into a conspiracy and
a joint plan with the Cuban government[.]” (Compl. ¶ 191.) Significantly, nowhere does
plaintiff actually allege that defendants entered into any agreement with the Cuban
government. 2 Instead, the complaint alleges an agreement between defendant Puig
and his mother, defendant Valdes, “to become informants for the Cuban government[.]”
(Compl. ¶ 194.) Plaintiff must allege more. He must allege facts showing an agreement
between defendants and the party that perpetrated the alleged torture (i.e., the Cuban
government). Absent that, plaintiff cannot state a claim for secondary liability under the
TVPA. See In re Chiquita Brands, 792 F. Supp. 2d at 1351 (complaint must provide

2

The complaint contains conclusory allegations that defendants conspired with, and aided and
abetted, “unnamed agents of the INDER, the repressive DCSE and the Cuban government.”
(Compl. ¶¶ 11 – 14.) As noted above, such allegations do not suffice. The complaint must
contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555.
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“facts regarding dates, attendees, and discussions of meetings between Chiquita and
the AUC, as well as facts regarding the terms of the agreements reached”). 3
Conclusion
Plaintiff’s claim against defendants must be dismissed because: (1) the TVPA is
not to be applied extraterritorially to cases, such as this one, that have nothing to do
with the United States; (2) the acts allegedly inflicted on plaintiff while in the custody of
the Cuban government fail to satisfy the TVPA’s stringent definition of torture; and (3)
the complaint fails to properly allege that defendants had any purpose or intent to
facilitate the Cuban government’s torture of plaintiff.
Respectfully submitted,
SANTINI LAW
1200 Brickell Avenue, Suite 950
Miami, Florida 33131
Tel: [phone]
Fax: [phone]
[e-mail]

By: /s/ Sean R. Santini
Sean R. Santini
Florida Bar No. 832898

3

The complaint’s failure to allege such an agreement distinguishes this case from the other
case filed by plaintiff’s counsel against a Major League Baseball player, Curbelo Garcia, et al. v.
Chapman, 13-cv-22210-CMA. (See Compl. ¶¶ 17, 179.) In that case, Judge Altonaga denied
defendants’ motion to dismiss plaintiffs’ secondary liability claim under the TVPA on the ground
that the complaint clearly alleged that defendant, after being caught attempting to flee Cuba,
met with Cuban president Raul Castro and entered into an agreement to become a snitch for
the government. Case no. 13-cv-22210-CMA (DE 84 at 17 and 22.) Plaintiff here does not, and
cannot, make such an allegation. Not only is Judge Altonaga’s decision in Chapman factually
distinguishable, it is now of questionable validity given the Supreme Court’s subsequent
decision in Kiobel prohibiting the application of federal statutes that do not clearly evince a
Congressional intent to be applied extraterritorially to cases that, like this case, have nothing to
do with the United States.
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CERTIFICATE OF SERVICE
I hereby certify that on August 22, 2013, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on
the attached Service List in the manner specified, either via transmission of Notices of
Electronic Filing generated by CM/ECF or in some other authorized manner for those
counsel or parties who are not authorized to receive electronically Notices of Electronic
Filing.

/s/ Sean R. Santini
Sean R. Santini

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SERVICE LIST

Kenia Bravo
[e-mail]
Avelino J. Gonzalez, P.A.
6780 Coral Way
Miami, FL 33155
Avelino Jose Gonzalez
[e-mail]
Avelino J. Gonzalez, P.A.
6780 Coral Way
Miami, FL 33155

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