Arbelaez v. The United States
| Decision Date | 23 September 2010 |
| Docket Number | No. 09-505C,09-505C |
| Parties | OMAIRA ARBELAEZ,Plaintiff, v. THE UNITED STATES,Defendant. |
| Court | U.S. Claims Court |
Omaira Arbelaez, Carrollton, Texas, pro se
Scott A. MacGriff, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, D.C., counsel of record for defendant, with whom were Tony West, Assistant Attorney General,
Jeanne E. Davidson, Director, Kenneth Dintzer, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C.
Pro se; Criminal Arrest; Tort Claims;"Unlawful Retention"; Takings; Cashier's Check and Business Documents;Public Use; Failure to State a Claim;Statute of Limitations; Accrual Suspension Rule; Breach of Contract; Third-Party Beneficiary
Plaintiff Omaira Arbelaez has filed a complaint, pro se, alleging several causes of action against the government: 1) "trover and conversion"; 2) "destruction"; 3) "unlawful interference with contracts"; 4) "unlawful retention"; and 5) "breach of duty."1 Compl. ¶¶ 9-10, 19-42. These claims stem from the seizure of certain property by the FBI in conjunction with the 1993 arrest of Ms. Arbelaez's husband, Alejandro Ordonez, on federal drug charges. Compl. Ex. 9; A13-14.2 Ms. Arbelaez has styled her complaint "as a third party seeking to recover an alleged interest in the unforfeited property." Compl. 1.
On December 4, 2009, in lieu of an answer to the complaint, the government filed a motion to dismiss for lack of jurisdiction or, in the alternative, for summary judgment. Plaintiff filed her response on March 11, 2010, and the government filed its reply on March 29, 2010. On May 21, 2010, the court directed the parties to file supplemental briefs on the question of Plaintiffs standing to bring suit. Defendant's brief was filed on July 1, 2010; Plaintiffs supplemental brief, after missing the first deadline, was filed on July 30, 2010. The government seeks dismissal on several grounds. First, it argues that Plaintiffs claims are barred by the statute of limitations. It also avers that Plaintiff has failed to join Mr. Ordonez, a necessary and indispensible party, pursuant to Rule 19 of the Rules of the Court of Federal Claims ("RCFC"), but further that, even if Mr. Ordonez were joined as a party, the Court would then lack jurisdiction under 28 U.S.C. § 1500 because Mr. Ordonez's claims are the subject of a pending suit previously filed in United States District Court in California (currently on appeal to the United States Court of Appeals for the 9th Circuit). The government also argues that the court lacks subject matter jurisdiction over certain of Plaintiffs claims sounding in tort and, finally, that Plaintiffs breach of contract claim fails because she has not properly alleged a contract with the United States. See Def.'s Mot. to Dismiss passim. In addition, in response to the court's order to the parties for supplemental briefing, the government urges dismissal for lack of standing. See Def.'s Resp. to the Court's May 21, 2010 Questions ( )passim. For the reasons discussed herein, the government's Motion to Dismiss is GRANTED.
On January 15, 1993, the FBI arrested Plaintiffs then-husband, Alejandro Ordonez, on various drug charges. Compl. Ex. 9; A88; see also United States v. Ordonez, No. 93-181 (C.D. Cal. 1993). At the time of the arrest, the FBI agents seized certain property that was in Mr. Ordonez's possession. A13-14. The items seized were inventoried and recorded on three FBI "Receipt for Property Received/Returned/Released/Seized" ("FD-597") forms. A162-64. These forms bear Mr. Ordonez's signature. Id. Four days after the arrest, on January 19, 1993, the FBI located, inside a briefcase that was among the items seized, a cashier's check payable to Ricardo Arbelaez, Plaintiffs father. Compl. ¶ 13; A166. The check was drawn from the DeutschSudamerikanische Bank in the amount of 123, 516 Deutsche Marks ("DM") . The check was placed into storage with the other seized items belonging to Mr. Ordonez. A166. In addition, the FBI seized business documents described as Corporation, a family business that Plaintiff and her husband operated. A1, 14.
Approximately six months after his criminal conviction was affirmed on appeal, Mr. Ordonez filed a motion in the United States District Court for the Central District of Californiaseeking the return of his property. See United States v. Ordonez, No. 97-1979 (C.D. Cal. 1997). Included among the items sought were the Ricardo Arbelaez cashier's check and the Highland Coffee business documents. A104-106. In connection with this case, Ms. Arbelaez submitted an affidavit (co-signed with her son, Francisco Ordonez) which stated that as of January 3, 1997, she had yet to receive any of the seized property back from the government. A137. The government did not oppose Mr. Ordonez's motion, A111, and requested that he identify a recipient for the property. A113. However, according to FBI Special Agent George Q. Fong, Mr. Ordonez never designated an individual to receive the property, and, as a result, the property was not released. A170; see also A35. Mr. Ordonez then filed a motion for judgment on the pleadings, which the court denied in November 1997. United States v. Ordonez, No. 77-1979, docket no. 12; A65.
In November 1999, Mr. Ordonez filed a Bivens action in the Central District of California, alleging various civil rights violations in conjunction with his arrest. See Ordonez v. Johnson, No. 99-9229 (C.D. Cal. 1999). After extensive litigation, the court dismissed the case; the United States Court of Appeals for the Ninth Circuit affirmed the dismissal in August 2006. A73-81.
In June 2007, Mr. Ordonez filed yet another motion for return of property, also in the Central District of California. See Ordonez v. United States, No. 07-3751 (C.D. Cal. 2007). The court granted his motion and ordered the government to provide Mr. Ordonez with an inventory of the items in its possession. Id., docket no. 11. Mr. Ordonez designated Ms. Lina Giraldo as a recipient, and on September 25, 2007, the FBI mailed Mr. Ordonez's property to Ms. Giraldo. A10. On June 18, 2008, the government filed a "Final Accounting" of Mr. Ordonez's property with the court, listing the items that had been returned to Ms. Giraldo, including the DeutschSudamerikanische Bank cashier's check, and other items presumed lost or destroyed. A114-20.
Mr. Ordonez then sought damages stemming from the government's retention of the property in question. Ordonez v. United States, No. 07-3751, docket no. 28. Ms. Arbelaez filed an affidavit in support of his motion; that same affidavit was later appended to her complaint in this court. Compare A4, with A141. In September 2009, approximately one month after Ms. Arbelaez filed suit in this court, the district court in California denied Mr. Ordonez's motion, holding that he had failed to establish both a possessory interest in the seized property and the monetary value of that property. Id., docket no. 40; A87-98. Mr. Ordonez appealed that denial to the Ninth Circuit; his appeal is still pending before that court. A101.
Ms. Arbelaez filed her complaint pro se with this court on August 3, 2009. From the complaint and two rounds of briefing, it is evident that Ms. Arbelaez's claim against the government derives from the cashier's check and the unspecified business documents of Highland Coffee (described in the Complaint variously as "documentary materials," Compl. 4, and "documents and contracts in relation to Highland Coffee Corp.'s business," id. at 5, etc.) that were among the possessions of Mr. Ordonez that were seized by the government. Ms. Arbelaez subsequently obtained possession of the check-presumably from Ms. Giraldo-but by that timeit was not negotiable. The Highland Coffee documents were either lost or destroyed while in the possession of the government.4 The check presumably had something to do with Highland Coffee, the "family business," because, as vice president and area manager, id. at 5, 6, Ms. Arbelaez wants the government to pay the face value of the check "plus a compound interest of 10% per year" and other damages for the subsequent failure of the Highland Coffee business, the loss of various business equipment, and the loss of her home, for a total claim of $1,375, 000.
The court is unclear about who owns the check and the business documents. Although they were in the possession of Mr. Ordonez, in his own suit to recover damages for the value of the same documents and other lost or destroyed items, the United States District Court for the Central District of California held that even Mr. Ordonez had failed "to establish that: (1) he had an ownership in the items listed in the government's final accounting and in the cashier's check; and (2) the value of those items." A94. The check is made out to Ricardo Arbelaez, and the business documents would seem to have belonged to the Highland Coffee corporation. Although Ms. Arbelaez alleges that she is the vice president and area manager of the corporation, it is not clear that she is the one entitled to sue on behalf of the corporation and that she is the one who would have been entitled to have possession of its documents.
Rather than having to address these particular threshold issues, the court will simply assume (for purposes of this opinion) that Ms. Arbelaez is a proper plaintiff. Even so, her complaint would have to be dismissed because: (1) she alleges certain causes of action not within the jurisdiction of the court; (2) she does not...
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