Drummond Co. v. Collingsworth

Decision Date01 August 2017
Docket NumberCase No.: 2:15-cv-506-RDP
PartiesDRUMMOND COMPANY, INC. et al., Plaintiffs, v. TERRENCE P. COLLINGSWORTH, et al., Defendants.
CourtU.S. District Court — Northern District of Alabama
MEMORANDUM OPINION

The court has before it Motions to Dismiss filed by Defendants Albert van Bilderbeek and Francisco Ramirez Cuellar. (Docs. # 121 and 122). The Motions have been fully briefed (Docs. # 125, 126, 128 and 129), and are ripe for decision.

I. Introduction

On March 27, 2015, Plaintiffs Drummond Company, Inc. and Drummond Ltd. (hereinafter collectively referred to as "Plaintiff" or "Drummond") filed its Complaint in this action. The Complaint alleges (1) violations of RICO, 18 U.S.C. § 1962(c) (Count I), (2) conspiracy to violate RICO, 18 U.S.C. § 1962(d) (Count II), (3) willful and/or reckless misrepresentation in violation of Alabama Code § 6-5-101 (1975) (Count III), (4) fraudulent concealment/suppression of material facts in violation of Alabama Code § 6-5-102 (1975) (Count IV), and (5) civil conspiracy (Count V). (Doc. # 1-1). Van Bilderbeek and Ramirez, like Ivan Alfredo Otero Mendoza before them, seek to have the claims against them dismissed for lack of personal jurisdiction and failure to state a claim. (See Docs. #121 and 122).

II. Standard of Review

A Rule 12(b)(2) motion tests the court's exercise of personal jurisdiction over a defendant. See Fed.R.Civ.P. 12(b)(2). "A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction." United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.2009); see also Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir.1999) ("A plaintiff seeking to obtain jurisdiction over a nonresident defendant initially need only allege sufficient facts to make out a prima facie case of jurisdiction."). If a plaintiff satisfies his initial burden and a defendant then submits affidavit evidence in support of its position, the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction. See Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268 (11th Cir.2002); see also Posner, 178 F.3d at 1214 ("'The plaintiff bears the burden of proving 'by affidavit the basis upon which jurisdiction may be obtained' only if the defendant challenging jurisdiction files 'affidavits in support of his position.'" (citation omitted)). When the issue of personal jurisdiction is decided on the record evidence, but without a discretionary hearing, a plaintiff demonstrates a "prima facie case of personal jurisdiction" by submitting evidence sufficient to defeat a motion made pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1317 (11th Cir.2006). At this evidentiary juncture, the court construes the complaint's allegations as true if they are uncontroverted by affidavits or deposition testimony, id. at 1317; where there are conflicts, the court "construe[s] all reasonable inferences in favor of the plaintiff." Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 199 Fed. Appx. 738, 741 (11th Cir.2006) (quoting Meier, 288 F.3d at 1269).

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A court may dismissa complaint under Rule 12(b)(6) if a plaintiff fails to provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). That is, if a plaintiff "ha[s] not nudged [her] claims across the line from conceivable to plausible, [her] complaint must be dismissed." Id.; see Ashcroft v. Iqbal, 139 S.Ct. 1937, 1953 (2009) (holding that Twombly was not limited to antitrust cases but rather was based on an interpretation and application of Federal Rule of Civil Procedure 8).

In deciding a Rule 12(b)(6) motion, the court must "accept all well-pleaded factual allegations in the complaint as true and construe the facts in a light most favorable to the non-moving party." Dacosta v. Nwachukwa, 304 F.3d 1045, 1047 (11th Cir. 2002) (citing GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998)). "[U]nsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal." Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (citing Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001) (en banc)). Further, "[a] complaint may not be dismissed because the plaintiff's claims do not support the legal theory he relies upon since the court must determine if the allegations provide for relief on any [plausible] theory." Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (emphasis in original) (citing Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967)). Nevertheless, conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as facts will not prevent dismissal. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002); see Kane Enters. v. MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003) ("[A] plaintiff must plead specific facts, not mere conclusional allegations, to avoid dismissal for failure to state a claim. We will thus not accept as true conclusory allegations orunwarranted deductions of fact.") (internal citations omitted); Kirwin v. Price Commc'ns. Corp., 274 F. Supp. 2d 1242, 1248 (M.D. Ala. 2003) ("[A]lthough the complaint must be read liberally in favor of the plaintiff, the court may not make liberal inferences beyond what has actually been alleged."), aff'd in part, 391 F.3d 1323 (11th Cir. 2004).

III. Relevant Factual Allegations

The court addresses separately the allegations made against the two moving Defendants.

A. Allegations Regarding Albert van Bilderbeek

Van Bilderbeek is defined in the Complaint as one of the "RICO Defendants." (Doc. # 1-1 at ¶ 1. Therefore, all general allegations regarding the "RICO Defendants" made in the Complaint apply to van Bilderbeek.1 Additionally, the Complaint contains very specific factual allegations about van Bilderbeek:

Defendant Albert van Bilderbeek is a citizen and resident of the Netherlands. Albert van Bilderbeek and his brother, Hendrik van Bilderbeek, are the principals of Llanos Oil Exploration Ltd. ("Llanos Oil"), a Dutch entity that views Drummond as a competitor in Colombia. Llanos Oil has made the wild accusation that Drummond conspired with the Colombian government to steal oil and gas rights from Llanos Oil. [Defendant] Collingsworth has a contract with the van Bilderbeeks which entitles him [Collingsworth] to 33.3% of any recovery obtained by Llanos Oil in relation to these oil and gas rights. In furtherance of the RICO Defendants' massive extortion campaign, Albert van Bilderbeek has in fact paid at least one witness - Jaime Blanco Maya - at least $95,000 in exchange for Blanco's false testimony against Drummond. Van Bilderbeek's personal interest in such payments was to use this false testimony to not only harm Drummond, but also to cause the Colombian government to cancel Drummond's oil rights in Colombia and give them to Llanos Oil. At Collingsworth's direct request, Albert van Bilderbeek paid money to Blanco, using Otero as a conduit, with the purpose of obtaining false testimony against Drummond that the RICO Defendants could utilize in their multifaceted and fraudulent scheme to extort money from Drummond. Albert van Bilderbeek has also conspired with and assisted the RICO Defendants in obtaining media exposure in Europe for the false allegations levied against Drummond by witnesses who have been paid in exchange for theirtestimony. During the times relevant to this Complaint, Albert van Bilderbeek has conducted business in Birmingham, Alabama through his agent, Collingsworth.

(Doc. # 1-1 at ¶ 17).

Albert van Bilderbeek has (i) assisted the co-defendants in funneling money to witnesses in Colombia which was sent by Albert van Bilderbeek to Ivan Otero, or his employees or agents, in Colombia; (ii) assisted the co-defendants in obtaining false testimony against Drummond, and did so with full knowledge that it would be submitted in court proceedings in Alabama; (iii) entered into a contractual agreement with co-defendant Collingsworth to pursue fraudulent claims against Drummond, a known Alabama resident, relating to oil and gas rights in Colombia; (iv) participated in or directed numerous phone calls, emails and other forms of communications with the other RICO defendants and coconspirators in the United States for the purpose of planning and carrying out their conspiracy and extortionate scheme; (v) participated in and orchestrated media campaigns in Europe designed to fraudulently influence government officials and the media for the purpose of extorting money from Drummond. Albert van Bilderbeek committed his illegal and wrongful acts with the purposeful intent that the effects of his acts be felt in the United States, and Alabama in particular, by Drummond, a known Alabama resident. Albert van Bilderbeek's co-conspirators and agents have also engaged in wrongful and illegal acts in the United States and in Alabama. Albert van Bilderbeek was aware of the effects in Alabama of those acts, which were for the benefit of van Bilderbeek, and his co-conspirators and agents were working at the direction, under the control, at the request, and/or on behalf of van Bilderbeek in committing those acts.

(Doc. # 1-1 at ¶ 37).

The Enterprise also solicited financial assistance from Albert van Bilderbeek, a principal of Llanos Oil. Llanos Oil previously sued Drummond in 2005 claiming its oil rights in Colombia were "stolen" by Drummond, and that Drummond conspired with the Colombian government to have Hendrik van Bilderbeek-- the brother
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