PAYER v. BERRONES et al
Filing
199
MEMORANDUM ORDER directing parties to appear for ORAL ARGUMENT on 9/17/2014 @ 2:30 PM in Courtroom 3D, etc. ORDER administratively terminating 128 and 145 Motions pending oral argument. Signed by Judge Renee Marie Bumb on 8/25/2014. (drw n.m.)
[Docket Nos. 128 and 145]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
E.L. ARCHIE PAYER, et al.,
Civil No. 12-1704 (RMB/JS)
Plaintiffs,
MEMORANDUM ORDER
v.
A.J. BERRONES, et al.,
Defendants.
This matter comes before the Court upon two motions: 1) a
motion by the Defendants A.J. Berrones, A.J. Berrones and
Associates, LLC, and Benjamin Penfield, [Docket No. 128] (the
Berrones Defendants), to dismiss the “Amended Complaint (2)”
[Docket No. 59], for failure to join indispensable parties under
Federal Rule of Civil Procedure 19 and to dismiss pursuant to
Rule 12(c) 1, and 2) Defendant Eric Keith Doss’s motion to dismiss
for lack of jurisdiction and for failure to state a claim upon
which relief can be granted, [Docket No. 145].
This Court notes that the above-captioned matter has been
consistently plagued by poorly drafted pleadings.
1
This Court
Per this Court’s prior Order [Docket No. 140], this Court found
that the motion should be treated as a motion for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
1
previously found that Plaintiffs’ First Amended Complaint failed
to state a claim and dismissed said complaint without prejudice
[see Docket No. 56].
Plaintiff then filed what was titled
“Amended Complaint 2,” which is voluminous, opaque and often
meandering.
It is, in other words, the antithesis of the
requirements of Federal Rule of Civil Procedure 8, which,
generally, requires a “short plain statement of the grounds for
relief.”
Plaintiffs’ RICO 2 Statement is similarly problematic as
it consistently refers this Court back to the Amended Complaint
(2) instead of making clear, in a concise fashion, the precise
factual basis of Plaintiffs’ RICO allegations.
Based on the allegations in the Amended Complaint (2), this
Court dismissed Estrategia Investimentos, LLC, Estrategia, LLC,
and Estrategia Investimentos S.A., (the “Estrategia Defendants”)
from this matter for lack of personal jurisdiction pursuant to
the Estrategia Defendants’ motion [Docket No. 102].
In that
same Opinion, this Court found that it did have personal
jurisdiction over the Berrones Defendants.
This Court’s Opinion
dealt with a jurisdictional analysis only, as presented by the
parties in their papers, and did not opine on whether
Plaintiffs’ Amended Complaint (2) passed muster under Rule 12.
Moreover, it is important to note that the Estrategia Defendants
2
Referring to the Racketeering Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1961 et seq.
2
did not present this Court with any arguments regarding
jurisdiction under the RICO statute, specifically 18 U.S.C.
1965(b) and (d), perhaps because the Plaintiffs presented only a
two sentence argument in favor of RICO jurisdiction in their
opposition brief, stating that such an issue was merely
“academic” because there were other grounds for jurisdiction
over each Defendant. [Docket No. 84 at 16].
Per the currently pending motions, however, it appears that
this issue is not academic, but rather fundamental to the
question of personal jurisdiction over several Defendants,
including Estrategia.
Therefore, this Court must determine
whether it should reconsider the decision to dismiss the
Estrategia Defendants for lack of personal jurisdiction based on
these new arguments regarding RICO-based jurisdiction.
See
Peters v. David, No. 07-2210, 2013 U.S. Dist. LEXIS 132106, at
*6-7 (D.N.J. Sept. 16, 2013)(“A court may reconsider its prior
decisions (accounting for the law-of-the case doctrine) so long
as it explains the reasoning behind its decision and takes the
appropriate steps to ensure that the parties are not prejudiced
by reliance on its prior ruling.”).
For that reason, this Court
shall Order the Estrategia Defendants to address this issue as
set forth below.
Moreover, from the instant submissions, it appears that the
confusion that has plagued this matter persists as to other
3
issues.
For example, Plaintiffs incorrectly assert that in its
prior Opinion [Docket No. 102], this Court found that
Plaintiffs’ fraud claims were sufficient under Rules 12(b) and
12(c).
This is a total misstatement.
This Court’s prior
Opinion resolved jurisdictional questions only and made no
factual findings as to the sufficiency of Plaintiffs’ pleading
under Rule 12.
Thus, Plaintiffs’ assertion in the pending
opposition brief [Docket No. 148], that arguments made by the
Defendants regarding the sufficiency of Plaintiffs’ pleadings
are somehow barred by either the law of the case doctrine or
collateral estoppel is totally unfounded.
The Court’s
statements that Plaintiffs were “victims of a significant
fraudulent scheme” and were “duped into paying $275,000 for what
turned out to be a worthless letter of credit” are mere
summaries of Plaintiffs’ allegations and in no way a finding
that any fraud was perpetrated by any specific Defendant.
Plaintiffs similarly misstate that this Court “denied
Doss’s motions or joinder” in their argument that Doss’s pending
motion is untimely.
[Docket No. 151 at 3].
Instead, this Court
merely noted that it would not address Doss’s arguments filed in
an improper brief. [Docket No. 102, n.1].
At the time, Doss
was appearing pro se and filed his brief objecting to
jurisdiction on April 1, 2013 (mere days after the deadline
established in Docket No. 66).
To the extent Plaintiffs argue
4
that Doss waived the ability to challenge personal jurisdiction,
the Court rejects those arguments; Doss properly asserted the
objection.
See Ferrostaal, Inc. v. M/V Sea Phoenix, No., 03-
164, 2005 U.S. Dist. LEXIS 37987 (D.N.J. Sept. 29, 2005).
In the wake of the arguments currently pending before this
Court regarding necessary parties under Rule 19 and personal
jurisdiction, it is clear that this Court must resolve the issue
of RICO jurisdiction on a fully briefed record before it can or
should address the other arguments of the parties; the existence
of RICO jurisdiction would moot Mr. Doss’s jurisdictional
arguments and bring the Estrategia Defendants back into this
matter.
Furthermore, Plaintiffs’ contention that their RICO claim
should only be “addressed on a full record and after adequate
discovery” is unfounded; 3 Plaintiffs have an obligation to
adequately plead facts satisfying the elements of all of their
claims.
The confusion surrounding Plaintiffs’ RICO claim is
underscored by the fact that both pending motions move to
3
See e.g., In re Ins. Brokerage Antitrust Litig., 618 F.3d 300,
369-70 (3d Cir. 2010)(“it is clear after Twombly that a RICO
claim must plead facts plausibly implying the existence of an
enterprise with the structural attributes identified in Boyle
[v. United States, 129 S. Ct. 2237]: a shared "purpose,
relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the
enterprise's purpose.")(emphasis added).
5
dismiss that claim on the exact same grounds. 4
The sufficiency
of Plaintiffs’ pleading is clearly another issue that must be
resolved as to all counts asserted.
Before this Court can resolve these outstanding issues, it
must seek clarification on several points and additional
arguments by the parties, to be presented in a concise and
coherent fashion.
ACCORDINGLY, IT IS on this 25th day of August, 2014,
ORDERED that the parties, including the Estrategia
Defendants, shall appear for oral argument before this Court on
September 17, 2014 at 2:30 p.m. in Courtroom 3D; and it is
further
ORDERED that those parties must be prepared to present
arguments to this Court regarding personal jurisdiction under
RICO; and it is further
ORDERED that Plaintiffs be prepared to address both
jurisdiction under RICO and the sufficiency of all Counts of the
Amended Complaint (2); and it is further
ORDERED that the currently pending motions [Docket Nos. 128
and 145] are ADMINISTATIVELY TERMINATED pending oral argument
4
It did not go unnoticed by this Court that Doss’s brief [Docket
No. 145] from pages 10-14 is a near verbatim recitation of the
brief submitted by the Berrones Defendants [Docket No. 128 p.
12-17].
6
and further briefing as ordered by the Court following that oral
argument.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
7
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