Vazquez-Baldonado v. Domenech

Filing 19

MEMORANDUM AND ORDER re 14 Motion for Default Judgment. The Court DENIES WITHOUT PREJUDICE plaintiff's motion for default judgment. No later than 6/30/2011, plaintiff may file a renewed motion for default judgment which must explain, with detailed legal analysis, how the allegations in the complaint support a valid RICO claim. Signed by Judge Francisco A. Besosa on 06/16/2011. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
URSULA VASQUEZ-BALDONADO,
Plaintiff,
CIVIL NO. 10-1251 (FAB)

v.
ALICIA DOMENECH, et al.,
Defendants.

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Before the Court is plaintiff’s motion for default judgment.
(Docket No. 14.) Having considered the complaint and the arguments
contained in plaintiff’s motion, the Court DENIES WITHOUT PREJUDICE
the motion for default judgment.
DISCUSSION
I.

Background
Procedural Background
On March 24, 2010, plaintiff Ursula M. Vazquez-Baldonado

(“Baldonado” or “plaintiff”) filed a complaint against Alicia
Domenech

1

(“Domenech”)

and

Jose

M.

Reyes-Reyes

(“Reyes”)

Alyssa Iglesias-Serpa, a third-year student at University of
North Carolina Law School, assisted in the preparation of this
Memorandum and Order.

Civil No. 10-1251 (FAB)

2

(collectively “defendants”)2 alleging actions in violation of the
Racketeering Influenced and Corrupt Organizations (“RICO”) Act,
18 U.S.C. § 1964.3

(Docket No. 1 at ¶¶ 1-4.)

On September 20,

2010, the Clerk entered default against Domenech and Reyes.
(Docket No. 13.)

On September 21, 2010, plaintiff filed a motion

for default judgment against both Domenech and Reyes.

(Docket

No. 14.)
Factual Background
The following factual findings are derived from the complaint:
Plaintiff is a resident of Puerto Rico.

She sought an

employment visa from Domenech, who presented herself as a Florida
attorney authorized to appear before the Department of Homeland
Security (“DHS”) for immigration purposes. (Docket No. 1 at ¶ 11.)
In 2007, plaintiff and Domenech had several telephone conversations
concerning plaintiff’s employment and immigration claims.
No. 1 at ¶ 29.)

(Docket

On July 28, 2007, plaintiff entered into a verbal

2

The complaint also includes an anonymous defendant, ABC
Insurance Co., alleged to be Domenech’s insurance carrier. (Docket
No. 1 at ¶ 7.) There is no indication in the record, however, that
this defendant was ever identified, named, or served. Because it
has been well over 120 days since the filing of the complaint, any
claims against this anonymous defendant are DISMISSED WITHOUT
PREJUDICE. See Fed.R.Civ.P. 4(m); (Docket No. 1.)
3

The complaint also raises numerous Puerto Rico law claims.
(See Docket No. 1 at ¶ 51.) Plaintiff briefly lists a series of
tort claims, but has failed to support those claims with
appropriate factual allegations.
(Docket No. 1 at ¶ 51.)
Therefore, the related state law claims referred to in the
complaint are DISMISSED WITH PREJUDICE.

Civil No. 10-1251 (FAB)

3

contract with Domenech, paying Domenech a total of $2,840 for
services including a “fingerprint fee.”

(Docket No. 1 at ¶ 12.)

Plaintiff was given a handwritten receipt, which inaccurately
stated that the funds given to Domenech were a personal loan and
not payment for legal services.

(Docket No. 1 at ¶ 13.)

Plaintiff has allegedly conducted similar schemes on others.
Plaintiff

identified

three

individuals

in

Puerto

Rico

named

“Matia,” “Alex,” and “Aneud,” who paid Domenech $7,000, $3,500, and
$3,500, respectively, in addition to a “fingerprint fee.”
No. 1 at ¶ 14.)

(Docket

Prior to meeting plaintiff, Domenech also traveled

to the Dominican Republic offering similar immigration services.
Domenech

collected

Paulino-Maldonado,

payments
Julio

from

plaintiff’s

Paulino-Maldonado,

Maldonado, and Raul Paulino-Reinoso.

cousins,

Rolirson

Nelson

Paulino-

In 2007, each respectively

paid $4,000, $5,000, $6,000, and $7,500 for representation. (Docket
No. 1 at ¶ 15.)

Domenech also appropriated $4,800 and $7,000 from

plaintiff’s brothers Alfredo Vazquez and Marino Vazquez.
No. 1 at ¶ 16.)
their behalf.

(Docket

To date, no documents have been filed with DHS on
(Docket No. 1 at ¶ 19.)

Domenech also represented plaintiff in an employment claim and
allegedly deposited a check (Santander Check No. 3754912 dated
November 9, 2007) for plaintiff in the amount of $125,000 on
November 12, 2007.

(Docket No. 1 at ¶ 20-21.)

Plaintiff was

unaware of the value of the check and was told by Domenech that it

Civil No. 10-1251 (FAB)

4

totaled $62,000. Domenech thus appropriated $63,000, only allowing
Baldonado to receive $50,000 at the time, with the remaining
$12,000 to be issued upon leaving the country.

(Docket No. 1 at

¶ 22.)
Due to plaintiff’s legal status, she was unable to cash
checks.

Therefore,

Domenech

issued

a

$50,000

check

(Check

No. 3760525) dated November 20, 2007 to Reyes, her boyfriend at the
time.

(Docket No. 1 at ¶ 23.)

Reyes attempted to issue a check

for $40,000, on plaintiff’s behalf, for the purchase a property in
the Dominican Republic.

(Docket No. 1 at ¶ 25.)

When the

transaction fell through, Reyes put a stop payment on the check,
but never returned the funds to plaintiff.
Domenech

was

investigated

by

(Docket No. 1 at ¶ 26.)

Agent

Hector

Diaz

(Badge

No. 13093) from the Carolina Precinct CIC of the Puerto Rico Police
Department (PRPD) and Assistant District Attorney Alma Mendez for
defrauding undocumented persons seeking legal status petitions.
(See Docket No. 1 at ¶¶ 31-32.)

On October 19, 2010, Domenech was

arrested for state criminal charges and an outstanding warrant.
(Docket No. 16 at ¶ 1.)

On November 10, 2010, she was indicted on

11 counts by a federal grand jury for impersonating a federal
officer and alleging to file immigration proceedings in exchange
for money.

(Docket No. 16 at ¶ 2.)

Civil No. 10-1251 (FAB)
Plaintiff

claims

5
she

suffered

monetary,

emotional,

psychological damage as a result of defendant’s acts.

and

(Docket

No. 1 at ¶¶ 40, 42, 44, and 48.)
II.

Legal Analysis
A.

Default Judgment Standard
Pursuant to Rule 55(b), a plaintiff “must apply to the

court for a default judgment” where the amount of damages claimed
is not a sum certain.
court

may

conduct

purposes,

admission

hearings

including

Fed.R.Civ.P. 55(b).
of

all

When necessary to effectuate judgment, “the
or

make

determin[ing]

referrals”

the

amount

for
of

numerous
damages.”

Entry of default, however, “‘constitutes an
facts

well-pleaded

in

the

complaint’”

and

precludes a defaulting defendant from contesting liability.

See

Benitez-Ruiz v. Hosp. Buen Pastor, No. 03-1330, 2009 WL 2151285
at *2 (D.P.R. July 14, 2009) (quoting Metropolitan Life Ins. Co. v.
Colon Rivera, 204 F.Supp.2d 273, 274-75 (D.P.R. 2002)); see also In
re The Home Restaurants, Inc., 285 F.3d 111, 114 (1st Cir. 2002)
(“[I]t is precisely the right to contest liability that a party
gives

up

when

process.”).

it

The

declines
court

may,

to

participate

however,

in

“examine

the
a

judicial

plaintiff’s

complaint to determine whether it alleges a cause of action.”
Quirindongo Pacheco v. Rolon Morales, 953 F.2d 15, 16 (1st Cir.
1992).

Civil No. 10-1251 (FAB)
B.

6

Racketeer Influenced and Corrupt Organizations Act (RICO)
Liability
Plaintiff alleges defendants have conspired, conducted,

and participated in defrauding and extorting plaintiff’s assets in
violation

of Title

18

U.S.C.

§

1964

of

RICO.4

Pursuant

to

18 U.S.C. § 1962(c), a plaintiff must allege each of the following
in order to state a claim:

(1) conduct (2) of an enterprise,

(3) through a pattern (4) of racketeering activity.

Sedima,

S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S.Ct. 3275,
3285 (1985).
(1) the

To prove a RICO conspiracy, a plaintiff must show

existence

of

an

enterprise;

(2)

that

each

defendant

knowingly joined the enterprise; and (3) that each defendant agreed
to commit, or in fact committed, two or more predicate acts.

See

Feinstein v. Resolution Trust Corp., 942 F.2d 34, 41 (1st Cir.
1991); see also United States v. Angiulo, 847 F.2d 956, 964 (1st
Cir.), cert. denied, 488 U.S. 852 (1988).
Based

on

the

cursory

legal

analysis

in

plaintiff’s

motion, it is not immediately clear that Baldonado’s factual
allegations support the liability of both defendants.

4

The motion

Pursuant to section 1964(a) of RICO, the United States has
jurisdiction to prevent violations of section 1962 of the same
statute. Section 1962 makes it unlawful “for any person employed
or associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise’s affairs though a pattern of racketeering activity . .
. .” Under section 1962(d) it is unlawful to conspire in violation
of section 1962(c).

Civil No. 10-1251 (FAB)

7

for default judgment does not specifically show how the allegations
in the complaint support a valid RICO claim.

Aside from its

general brevity, there are four key issues which the motion fails
to address in adequate detail.
First, the motion does not point out which parts of the
complaint establish the existence of an enterprise.

An enterprise

may be composed of “any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity.”
18 U.S.C. § 1961 (4).

The complaint “must allege the existence of

a ‘person’ distinct from the ‘enterprise’” itself.

Doyle v.

Hasbro, Inc., 103 F.3d 186, 190-91 (1st Cir. 1996) (citing Miranda
v. Ponce Fed. Bank, 948 F.2d 41, 44-45 (1st Cir. 1991); ArzuagaCollazo v. Oriental Fed. Sav. Bank, 913 F.2d 5, 6 (1st Cir. 1990)).
It is uncertain from the facts alleged in the complaint whether
Domenech was acting alone or involved with a union of individuals
associated-in-fact.

(Docket No. 1 at ¶ 12.)

The complaint simply

references Domenech’s personal actions without clearly indicating
whether an enterprise, distinct from the named defendants, existed.
Second, plaintiff’s motion leaves in significant question
whether the actions alleged in the complaint constitute acts
establishing a pattern of activity.

Plaintiff must demonstrate at

least two related predicates “that amount to, or threaten the
likelihood of, continued criminal activity.”

See H.J. Inc. v. Nw.

Civil No. 10-1251 (FAB)

8

Bell Tel., Co., 492 U.S. 229, 229, 109 S.Ct. 2893, 2895-96 (1989).
Although the

complaint

lists

a

series

of

predicate

and non-

predicate acts, it appears that plaintiff only provides some
factual support for wire fraud.

(See Docket No. 1 at ¶ 10, 17,

and 29.); Feinstein, 942 F.2d at 42 (“It is not enough for a
plaintiff to file a RICO action, chant statutory mantra, and leave
the identification of the predicate acts to the time of trial.”).
Plaintiff’s cursory statements regarding wire fraud may not provide
sufficient detail concerning the communications.

Plaintiff must

plead with particularity when and where the wire communications
took

place,

in

addition

to

what

information

was

exchanged.

Fed.R.Civ.P. 9(b); See Feinstein, 942 F.2d at 42 (quoting New
England Data Serv., Inc. v. Becher, 829 F.2d 286, 292 (1st Cir.
1987) (“‘[M]erely stat[ing] conclusory allegations of mail and wire
fraud . . . with no description of any time, place or content of
the communication’ does not satisfy the pleader’s burden.”)).

It

is not clear from the information provided whether the pattern
requirement has been satisfied in this case, because the factual
allegations do not clearly support any additional predicate acts or
threat of continued criminal activity.
Third,
requirement

has

it

is

been

not
met,

apparent
because

whether
the

the

continuity

complaint’s

factual

allegations are unclear regarding the span of time during which the
alleged acts occurred.

According to the complaint, the actions

Civil No. 10-1251 (FAB)

9

occurred in July and November 2007.
months

do

not

satisfy

the

In general, a few weeks or

“continued

criminal

activity”

requirement, unless it spans over an “open-ended period yet to
come.”

See Feinstein, 942 F.2d at 45.

The acts must be similar,

related, or encompass multiple criminal episodes over a significant
period of time.

See Apparel Art Int’l., Inc. v. Jacobson, 967 F.2d

720, 723 (1st Cir. 1992).

The complaint’s vague references to

events occurring “in 2007” and omission of relevant dates appear
insufficient to establish continuity or the likelihood of future
occurrences.

(See Docket No. 1 at ¶¶ 14-17.)

The motion for

default judgment does not serve to clarify this issue, thus making
it difficult to determine whether sufficiently related predicate
acts existed over a significant period of time.
Lastly, plaintiff does not explain how the facts alleged
satisfy the elements of a conspiracy.
existence

of

enterprise;

(2)

that

Plaintiff must show (1) the
each

defendant

joined

the

enterprise; and (3) that each defendant agreed to commit, or in
fact

committed

two

or

more

participation in the enterprise.

predicate

acts

as

part

of

See Angiulo, 847 F.2d at 964.

his
As

discussed above, the existence of an enterprise is far from evident
in the complaint. Plaintiff’s factual allegations do not appear to
support the requisite showing that defendants actually joined an
enterprise or agreed to commit two or more predicate acts.

Id.

Furthermore, plaintiff lists wire fraud as a predicate act, but the

Civil No. 10-1251 (FAB)
complaint

only

provides

10
vague

factual

support

fraudulent use of telephone communications.

for

Domenech’s

Although plaintiff

also addresses Reyes’ appropriation of plaintiff’s funds, she has
not explained how this single action relates back to an enterprise
or pattern of racketeering activity.

(Docket No. 1 at ¶ 26.); See

McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786,
794 (1st Cir. 1990) (stating that the mere fact that operation is
illegal does not render it a pattern of racketeering activity); see
also Feinstein, 942 F.2d 34, 44 n. 11 (1st Cir. 1991) (stating that
plaintiff’s belief that acts are part of a common scheme are not
sufficient to satisfy a RICO pattern requirement). Without further
clarification, plaintiff has not given the Court a clear basis to
determine that defendants were part of a RICO conspiracy.
CONCLUSION
For the reasons expressed above, the Court DENIES WITHOUT
PREJUDICE plaintiff’s motion for default judgment.

No later than

June 30, 2011, plaintiff may file a renewed motion for default
judgment which must explain, with detailed legal analysis, how the
allegations in the complaint support a valid RICO claim.

If

plaintiffs fail to do so, the Court may dismiss this case for want
of prosecution.

Once that motion has been filed, the Court may

require plaintiff to present evidence at a hearing to establish the
truth

of

any

factual

allegations

and

properly

determine

an

Civil No. 10-1251 (FAB)
appropriate damages award.

11
See Quirindongo Pacheco, 953 F.2d at

16.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 16, 2011.
s/ FRANCISCO A. BESOSA
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE