Consorcio de Empresas Mendocinas para Potrerillos S.A. v. Nodus International Bank, Inc.

Filing 86

ORDER granting 71 Motion for Joinder. Signed by US Magistrate Judge Bruce J. McGiverin on 11/26/2024. (MK)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CONSORCIO DE EMPRESAS
MENDOCINAS PARA POTRERILLOS
S.A.,
Plaintiff,
Civil No. 23-1132 (SCC)

v.
NODUS INTERNATIONAL BANK, INC.,
et al.,
Defendants.

ORDER
Consorcio de Empresas Mendocinas para Potrerillos S.A. (“CEMPSSA”) brought this
action against Nodus International Bank, Inc. (“Nodus”) and its two principal shareholders and
officers, Tomas Niembro-Concha (“Niembro-Concha”) and Juan Ramirez-Silva (“Ramirez-Silva”
and collectively with Nodus and Niembro-Concha, the “Defendants”). CEMPSSA alleges that
Defendants are liable for breach of contract, breach of the implied covenant of good faith and fair
dealing, contractual dolo, deceit, fraud, and violation of the Puerto Rico Commercial Transactions
Act. Defendant Niembro-Concha moved to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure (“FRCP”) 12(b)(6). Dkt. 61. Defendant Ramirez-Silva had previously
moved to dismiss on different grounds (see Dkt. 60), but now seeks to adopt, for his own benefit,
the arguments raised in Niembro-Concha’s motion to dismiss. Dkt. 71. CEMPSSA opposed, Dkt.
74, and Ramirez-Silva replied, Dkt. 81. The motion was referred to me for disposition. Dkt. 85.
FRCP 10(c) provides that “[a] statement in a pleading may be adopted by reference
elsewhere in the same pleading or in any other pleading or motion.” Ramirez-Silva posits that
FRCP 10(c) allows him to adopt the arguments raised by Niembro-Concha in his motion and
asserts that such arguments apply identically to him. Dkt. 71. CEMPSSA’s opposition is based on
prejudice, since they did not have an opportunity to respond to the arguments as applied to

Consorcio de Empresas Mendocinas para Potrerillos S.A. v. Nodus International Bank, Inc., et al., No. 23-1132 (SCC)
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Ramirez-Silva. See Dkt. 74. Ramirez-Silva, in turn, counters that the allegations in the complaint
refer to each of the Nodus directors interchangeably, thus nullifying any unfairness to CEMPSSA
in allowing him to adopt the arguments in Niembro-Concha’s motion. See Dkt. 81.
After considering relevant law, the parties’ contentions, and the circumstances of this case,
I am granting Ramirez-Silva’s motion. While FRCP 10(c) arguably only allows parties to adopt
statements in pleadings (not including motions), courts occasionally allow parties to adopt
statements in motions. See Rivera v. Mora Dev. Corp., 624 F. Supp. 3d 80, 85 (D.P.R. 2022)
(defendant was allowed to adopt arguments raised in their prior motion to dismiss in a new motion
to dismiss after plaintiff filed an amended complaint raising no new factual allegations relevant to
that defendant); Doyle v. Hogan, Civil No. DKC 19-0190, 2019 U.S. Dist. LEXIS 128367, 2019
WL 3500924, at *18-19 (D. Md. Aug. 1, 2019) (allowing defendant to adopt arguments raised in
their opposition to plaintiff’s motion to dismiss in their own motion to dismiss, noting that “other
federal district courts have allowed incorporation by reference under similar circumstances”). But
see Marco Int’l, LLC v. Como-Coffee, LLC, No. 17-cv-10502, 2018 U.S. Dist. LEXIS 63249, 2018
WL 1790171, at 1 n.1 (E.D. Mich. Apr. 16, 2018) (“Rule 10(c) merely provides that a statement
made in a pleading may be adopted by reference elsewhere…[d]ocuments that constitute pleadings
are specifically enumerated in [FRCP] 7(a), and a motion (or a response to a motion) is not a
pleading.”) (emphasis in original). In this case, CEMPSSA’s complaint largely refers to NiembroConcha and Ramirez-Silva interchangeably, with the relevant conduct attributed to them
collectively. See Dkt. 29 at ¶¶ 33-42. Further, Niembro-Concha’s arguments mostly raise general
issues with CEMPSSA’s pleading, such as alleging failure to plead fraud with particularity, rather
than being related to him specifically. See Dkt. 61 at 5-9. The exception, that Nodus’s corporate
shield protects Niembro-Concha with respect to the allegations in the complaint, applies equally

Consorcio de Empresas Mendocinas para Potrerillos S.A. v. Nodus International Bank, Inc., et al., No. 23-1132 (SCC)
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to Ramirez-Silva. Last, CEMPSSA fails to explain how they would be prejudiced if RamirezSilva’s motion were granted. Despite claiming that they lost a chance to rebut Niembro-Concha’s
arguments as applied to Ramirez-Silva, they have not presented any argument specific to RamirezSilva that they would actually like to make. Given the above, Ramirez-Silva’s motion is
GRANTED. The arguments made by Niembro-Concha in in his motion to dismiss will be credited
to Ramirez-Silva.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 26th day of November, 2024.
/s/ Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge