Vazquez-Baldonado v. Domenech
Filing
29
MEMORANDUM AND ORDER re 22 Motion to Amend/Correct; Motion for Reconsideration; and re 24 Motion In Compliance; Motion for Default Judgment; Motion for Default Hearing. The Court DENIES WITH PREJUDICE plaintiff's motion for default judgment . The Court dismisses this case for want of prosecution. Judgment shall be entered accordingly. Plaintiff's motion for reconsideration of her Puerto Rico law claims, (Docket No. 22), is rendered MOOT. Signed by Judge Francisco A. Besosa on 03/06/2012. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
URSULA VAZQUEZ-BALDONADO,
Plaintiff,
CIVIL NO. 10-1251 (FAB)
v.
ALICIA DOMENECH,
JOSE M. REYES-REYES,
Defendants.
MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court is plaintiff’s motion for reconsideration of
the Court’s dismissal of her Puerto Rico law claims, (Docket
No. 22), and plaintiff’s renewed motion for default judgment.
(Docket No. 24.) Having considered the complaint and the arguments
contained in plaintiff’s motions, the Court DENIES WITH PREJUDICE
the renewed motion for default judgment.
DISCUSSION
I.
Background
Procedural Background
On March 24, 2010, plaintiff Ursula M. Vazquez-Baldonado
(“Vazquez”
Domenech
or
“plaintiff”)
(“Domenech”)
and
filed
Jose
a
complaint
M.
against
Reyes-Reyes
Alicia
(“Reyes”)
(collectively “defendants”) alleging actions in violation of the
Racketeering Influenced and Corrupt Organizations (“RICO”) Act,
Civil No. 10-1251 (FAB)
18 U.S.C. § 1964.
2010,
the
2
Clerk
(Docket No. 1 at ¶¶ 1-4.)
(Docket No. 13.)
entered
default
against
On September 20,
Domenech
and
Reyes.
On September 21, 2010, plaintiff filed a motion
for default judgment against both Domenech and Reyes.
(Docket
No. 14.) On June 16, 2011, the Court denied plaintiff’s motion for
default judgment.
(Docket No. 19.)
The Court indicated that
plaintiff could file a renewed motion for default which must
explain, with detailed legal analysis, how the allegations in the
complaint support
a valid RICO claim.
Id.
The Court also
dismissed plaintiff’s Puerto Rico tort law claims with prejudice
for failure to support those claims with appropriate factual
allegations.
(Docket No. 19 at p. 2, n. 2.)
On July 18, 2011, plaintiff filed a motion to amend her
complaint1 and to seek reconsideration of the Court’s dismissal of
plaintiff’s Puerto Rico tort law claims.
(Docket No. 22.)
On that
same date, plaintiff also filed a renewed motion for default
judgment.
(Docket No. 24.)
Factual Background
The following factual findings are derived from plaintiff’s
amended complaint:
Plaintiff is a resident of Puerto Rico.
¶ 5.)
(Docket No. 23 at
She sought an employment visa from Domenech, who presented
1
Plaintiff’s amended complaint, unlike her original
complaint, states that defendant Reyes “is not being sued for any
R[I]CO violations.” (Docket No. 23 at ¶ 7.)
Civil No. 10-1251 (FAB)
3
herself as a Florida attorney authorized to appear before the
Department of Homeland Security (“DHS”) for immigration purposes.
(Docket No. 23 at ¶ 55.)
telephone
conversations
immigration claims.
Plaintiff and Domenech had several
concerning
plaintiff’s
(Docket No. 23 at ¶ 79.)
employment
and
Plaintiff then
entered into a verbal contract with Domenech, paying Domenech a
total of
$2,840
for
services
(Docket No. 23 at ¶¶ 55-56.)
including
a
fee.”2
“fingerprint
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. 23 at ¶ 57.)
Domenech 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. 23 at ¶ 58.)
(Docket
Prior to meeting plaintiff, Domenech also
allegedly traveled to the Dominican Republic offering similar
immigration services.
Domenech allegedly collected payments from
plaintiff’s
Nelson
cousins,
Paulino-Maldonado,
Julio
Paulino-
Maldonado, Rolirson Paulino-Maldonado, and Raul Paulino-Reinoso.
2
Plaintiff’s amended complaint is unclear as to when this
verbal agreement actually occurred. She first states that these
events occurred on July 28, 2007 but in the subsequent paragraph,
she claims that the events occurred on July 28, 2009.
(Docket
No. 23 at ¶¶ 55-56.) In her original complaint, however, plaintiff
unequivocally indicated that this occurred on July 28, 2007.
(Docket No. 1 at ¶¶ 11-12.)
Civil No. 10-1251 (FAB)
4
(Docket No. 23 at ¶ 59.)
Plaintiff claims that in 2007, each
cousin respectively paid $4,000, $5,000, $6,000, and $7,500 for
representation.
Id.
Domenech also allegedly appropriated $4,800
and $7,000 from plaintiff’s brothers, Alfredo Vazquez and Marino
Vazquez.
(Docket No. 23 at ¶ 60.)
filed with DHS on their behalf.
To date, no documents have been
(Docket No. 23 at ¶ 63.)
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. 23 at ¶¶ 70-71.)
Plaintiff was
unaware of the value of the check and was told by Domenech that it
totaled $62,000. Domenech thus appropriated $63,000, only allowing
Vazquez to receive $50,000 at the time, with the remaining $12,000
to be issued upon leaving the country.
(Docket No. 23 at ¶ 72.)
Because of plaintiff’s legal status, she was unable to cash
checks.
Therefore, Domenech allegedly issued a $50,000 check
(Check No. 3760525) dated November 20, 2007 to Reyes, plaintiff’s
boyfriend at the time.
(Docket No. 23 at ¶ 73.)
Plaintiff claims
that Reyes attempted to issue a check for $40,000, on plaintiff’s
behalf, for the purchase of property in the Dominican Republic.
(Docket No. 23 at ¶ 75.)
When the transaction fell through, Reyes
allegedly put a stop payment on the check, but never returned the
funds to plaintiff.
(Docket No. 23 at ¶ 76.)
Civil No. 10-1251 (FAB)
Domenech
was
5
investigated
by
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. 23 at ¶¶ 64-65.)
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
eleven 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.)
Plaintiff claims that she
suffered monetary, emotional, and psychological damage as a result
of defendant’s acts.
(Docket No. 23 at ¶¶ 87, 89, 91, and 94.)
Plaintiff repeats the above facts nearly verbatim from her
original complaint.
(See Docket No. 1.)
In addition, plaintiff
has added facts derived from a criminal case, (see Criminal No. 10431 (DRD)),3 that was filed on October 19, 2010.
The complaint in
the criminal case allegedly charged Domenech with violations of 8
U.S.C. § 1324(a)(1)(A)(iii) (for harboring or bringing in aliens)
and 18 U.S.C. § 912 (for falsely pretending to be an employee of
the United States) for events that occurred from February 2009 to
March 2009.
3
(Docket No. 23 at ¶ 15.)
Defendant was arrested on
Although plaintiff cites to Criminal No. 10-965 (DRD)(CVR),
that case was merged into Criminal No. 10-431. Therefore, all of
plaintiff’s citations to the criminal case in her amended complaint
should be to Criminal No. 10-431 and not Criminal No. 10-965.
Civil No. 10-1251 (FAB)
October 20, 2010.
6
(Docket No. 23 at ¶ 16.)
On November 10, 2010,
the grand jury indicted defendant and two co-defendants, Genova
Navarro and Dianne Raciti,4 with thirteen counts for violations of
18 U.S.C. § 371 for conspiracy to impersonate a federal officer,
18 U.S.C. §§ 912 and 2 for impersonating a federal officer, and
aiding and abetting; and 18 U.S.C. § 1324 (a)(1)(A)(iii) for
harboring illegal aliens.
(See Docket No. 23 at ¶ 18; see also
Criminal No. 10-431, Docket No. 19, pp. 1-17.)
Additionally, the
indictment contains forfeiture allegations pursuant to 18 U.S.C. §
982(a)(6) and 28 U.S.C. §
2461(c)5.
(Docket No. 23 at ¶ 18.)
Specifically, the indictment alleges that Domenech, Navarro, and
Raciti falsely represented that they were federal immigration
officers or employees, or federal immigration judges, to their
clients, who were United States Legal Permanent Residents or
illegal aliens.
(Docket No. 23 at ¶ 21.)
Domenech, Navarro, and
Raciti allegedly indicated that they could expedite application
processes
and
obtain
special
immigration
benefits
for
their
clients.
Id.
They also allegedly induced these clients to pay
them substantial amounts of money even though they had no intention
of fulfilling their clients’ immigration needs.
Id.
4
Neither Navarro nor Raciti are listed as defendants in this
action for violations of RICO. (See Docket No. 23 at ¶¶ 11-12.)
5
Plaintiff incorrectly states that one of the forfeiture
allegations were pursuant to “Title 18 USC section 2461(c).”
(Docket No. 23 at ¶ 18.)
Civil No. 10-1251 (FAB)
7
Plaintiff then elaborates on the manner and means of the
conspiracy formed by Domenech, Navarro, and Raciti to defraud the
clients by offering to provide immigration services. Specifically,
she alleges facts about how Domenech, Navarro, and Raciti defrauded
five unnamed victims, R.M.G., G.P.V., A.M.M., N.F., and M.M.R.
(Docket No. 23 at ¶¶ 19, 29-45.)
Plaintiff also repeats nearly
verbatim these facts from the indictment in the criminal case,
Criminal No. 10-431.
(See Docket No. 23 at ¶¶ 24-28; see also
Criminal No. 10-431, Docket No. 19 at ¶¶ 9-32.)
In her renewed motion for default judgment, plaintiff argues
that she has pled sufficient facts to state a cause of action under
the RICO Act.
(Docket No. 24 at p. 2.)
Specifically, plaintiff
argues that she has stated the elements of an enterprise, “which is
distinct from the other named defendants.”
p. 4.)
(Docket No. 24 at
She also contends that she has alleged sufficient acts to
establish
a
pattern
of
activity
and
to
meet
the
continuity
requirement because she has shown that the alleged acts occurred
over a continuous period of time.
(Docket No. 24 at pp. 4-5.)
The
Court finds plaintiff’s arguments unpersuasive.
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.
When necessary to effectuate judgment, “the
Civil No. 10-1251 (FAB)
court
may
purposes,
conduct
admission
hearings
including
Fed.R.Civ.P. 55(b).
of
all
8
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
it
declines
to
participate
in
the
judicial
process.”). A court may, however, “examine a 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).
B.
Racketeer Influenced and Corrupt Organizations (RICO) Act
Liability
Plaintiff alleges defendant Domenech has conspired with
others, conducted, and participated in defrauding and extorting
plaintiff’s assets in violation of Title 18 U.S.C. § 1964 of RICO.
Pursuant to section 1964(c), which contains civil remedies for RICO
violations, private litigants who incurred injury to their business
Civil No. 10-1251 (FAB)
9
or property under section 19626 of the same statute may sue for
treble damages.
A
plaintiff must allege each of the following in
order to state a claim under 18 U.S.C. § 1962(c):
(1) conduct
(2) of an enterprise, (3) through a pattern (4) of racketeering
activity.7
(1985).
Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496
Additionally, a plaintiff “only has standing if, and can
only recover to the extent that, he has been injured in his
business or property by the conduct constituting the violation.”
Id.
Furthermore, section 1962(d) makes it unlawful to conspire in
violation
of section
1962(c).
To
prove a RICO
conspiracy, a
plaintiff must show (1) the 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. 1988), cert. denied, 488 U.S. 852 (1988).
Despite the Court’s admonitions that plaintiff provide a
detailed legal analysis as to how the factual allegations in her
complaint support a valid RICO claim, (Docket No. 19 at p. 10),
6
Section 1962 provides in part that it is 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
. . .” 18 U.S.C. § 1962(c).
7
“Racketeering activity” is defined under Section 1961 of the
RICO statute. 18 U.S.C. § 1961(1).
Civil No. 10-1251 (FAB)
10
plaintiff’s renewed motion for default judgment still fails to
address several key issues in adequate detail.
Specifically,
plaintiff does not explain how her factual allegations constitute
a
pattern
of
racketeering
activity
under
RICO,
whether
RICO
predicate acts occurred with continuity, and whether a conspiracy
to violate Section 1962(c) of the civil RICO statute exists.
1.
Pattern of Racketeering Activity
a.
Predicate Acts
First,
plaintiff’s
motion
still
leaves
in
significant question whether the actions alleged in the complaint
constitute predicate acts establishing a pattern of activity.
Plaintiff must demonstrate at least two related predicates “that
amounted to, or threatened the likelihood of, continued criminal
activity.”
(1989).
See H.J. Inc. v. Nw. Bell Tel., Co., 492 U.S. 229, 237
Plaintiff argues that her allegations of defendants’
activity during “[t]he 2007-2009 period satisfies this prong.”
(Docket No. 24 at p. 4.)
Furthermore, plaintiff argues that she
showed a pattern of predicate acts by alleging in the amended
complaint that defendant Domench and her “criminal conspirators”
engaged
in
a
“pattern
[of]
impersonating
federal
immigration
officials or employees, the showing of false identification badges,
the use of government uniforms to conduct its fingerprinting
scheme, and the constant vouching for each other.”
at pp. 4-5.)
(Docket No. 24
None of these actions, however, is listed as
Civil No. 10-1251 (FAB)
11
predicate acts of racketeering activity under 18 U.S.C. § 1961(1).
Miranda, 948 F.2d at 48 (holding that “an actionable claim under
section 1962(d), like one under section 1962(c), requires that the
complainant’s injury stem from a predicate act within the purview
of § 1961(1).”)
Plaintiff’s amended complaint also lists a
series of predicate and non-predicate acts that are copied verbatim
from her original complaint.
No. 1 at ¶ 10.)
(See Docket No. 23 at ¶ 54 and Docket
Plaintiff also copies verbatim the meager factual
support for wire fraud without any further elaboration.
(See
Docket No. 23 at ¶¶ 54, 61, and 79; and Docket No. 1 at ¶¶ 10, 17,
and 29).
provide
These cursory statements regarding wire fraud fail to
sufficient
detail
concerning
the
communications.
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 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.”)).
Therefore, plaintiff’s amended complaint and renewed
Civil No. 10-1251 (FAB)
12
motion for default judgment fail to provide the factual allegations
to support clearly any additional predicate acts to satisfy the
pattern requirement.
b.
Continued Criminal Activity
Plaintiff also fails to plead sufficient facts
to meet the continuity requirement because the amended complaint’s
factual allegations are unclear regarding the span of time during
which the alleged predicate acts occurred. In general, a few weeks
or
months
do
not
satisfy
the
“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).
While plaintiff argues in her motion for
default judgment that the alleged acts occurred between 2007 and
2009, none of the acts in 2009 were predicate acts of racketeering
activity.
According to the amended complaint, the only alleged
predicate acts of wire fraud occurred in July 20078 and November
8
As indicated in footnote 1 above, plaintiff’s amended
complaint is unclear as to when this verbal agreement actually
occurred. She states that these events occurred on July 28, 2007
but in the subsequent paragraph, she refers to the events and
suggests that they occurred on July 28, 2009. (Docket No. 23 at
¶¶ 55-56.) In the next paragraph, she then refers to a receipt
given to her for the same transaction on July 28, 2007. (Docket
No. 23 at ¶ 57.)
In her original complaint, plaintiff also
unequivocally indicated that this incident occurred on July 28,
2007. (Docket No. 1 at ¶¶ 11-12.) Therefore, the Court will use
the 2007 date and not the 2009 date.
Civil No. 10-1251 (FAB)
2007.
13
(Docket No. 23 at ¶¶ 55, 57, 59, 71).
The amended
complaint’s vague references to events occurring “in 2007” and
omission of relevant dates are insufficient to establish continuity
or the likelihood of future occurrences.9
(See Docket No. 1 at
¶¶ 14-17 and Docket No. 23 at ¶¶ 58-61.)
Even if the plaintiff
alleged sufficient predicate acts between 2007 and 2009, this twoyear period may not be sufficient to constitute a significant
period of time.
See Apparel Art Int’l., 967 F.2d at 723 (citing
J.D. Marshall Int’l., Inc. v. Redstart, Inc., 935 F.2d 815, 820-21
(finding that thirteen months was a “relatively short period of
time”); Feinstein, 942 F.2d at 44-47 (holding that acts of mail and
wire fraud taking place over two years and involving different
defendants were not part of a common scheme).
Because neither the
amended complaint nor the motion for default judgment contains
sufficiently related predicate acts that existed over a significant
period of time, the Court finds that plaintiff still fails to show
continued criminal activity to establish a pattern of racketeering
activity.
3.
Conspiracy
Lastly, plaintiff fails to explain how the facts
alleged satisfy the elements of a RICO conspiracy.
Plaintiff must
show (1) the existence of enterprise; (2) that each defendant
9
Again, plaintiff copies these paragraphs verbatim from her
original amended complaint without any additional information.
Civil No. 10-1251 (FAB)
14
joined the enterprise; and (3) that each defendant agreed to
commit, or in fact committed, two or more predicate acts as part of
his or her participation in the enterprise.
at 964.
See Angiulo, 847 F.2d
Plaintiff argues that she has met elements one and two
because she
alleged
the
existence
of
an
enterprise
defendant Domenech joined in the enterprise.
pp. 3-4.)
and that
(Docket No. 24 at
The Court will not address this issue because even
assuming that plaintiff has alleged sufficient facts to show
elements one and two of a RICO conspiracy, plaintiff’s factual
allegations fail to support the requisite showing that Domenech
agreed to commit two or more predicate acts.
See Angiulo, 847 F.2d
at 964.
Plaintiff lists wire fraud as a predicate act, but the
amended
complaint
only
provides
vague
factual
support
for
Domenech’s fraudulent use of telephone communications. (See Docket
No. 23 at ¶ 54, 61, 76, 82).
As indicated in the Court’s
memorandum and order regarding plaintiff’s original motion for
default judgment, (see Docket No. 19 at p. 10), 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 and
Docket No. 23 at ¶ 76); See McEvoy Travel Bureau, Inc. v. Heritage
Travel, Inc., 904 F.2d 786, 794 n. 14 (1st Cir. 1990) (stating that
the mere fact that an operation is illegal does not render it a
pattern of racketeering activity); see also Feinstein, 942 F.2d 34,
Civil No. 10-1251 (FAB)
15
45 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). Therefore, plaintiff’s amended complaint and
renewed motion for default judgment fail to give the Court a clear
basis to determine that defendants were part of a RICO conspiracy.
CONCLUSION
For
the
reasons
expressed
above,
the
Court
PREJUDICE plaintiff’s motion for default judgment.
DENIES
WITH
Plaintiff has
failed to file a renewed motion for default judgment that explains
how the allegations in her amended complaint support a valid RICO
claim.
Instead, plaintiff’s amended complaint merely reproduces
almost verbatim a criminal indictment and her original complaint.
This does not constitute detailed legal analysis.
Therefore, the
Court dismisses this case for want of prosecution.
Judgment shall
be entered accordingly.
Plaintiff’s motion for reconsideration of her Puerto Rico law
claims, (Docket No. 22), is rendered MOOT.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 6, 2012.
s/ FRANCISCO A. BESOSA
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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