Osio v. Moros
| Docket Number | 21-20706-Civ-GAYLES/TORRES |
| Decision Date | 19 July 2023 |
| Parties | MEUDY ALBAN OSIO in her personal capacity and in her capacity as the personal representative of the Estate of FERNANDO ALBERTO ALBAN, FERNANDO ALBAN OSIO, and MARIA FERNANDA ALBAN OSIO, Plaintiffs, v. NICOLAS MADURO MOROS; FUERZAS ARMADAS REVOLUCIONARIAS DE COLOMBIA “FARC”; THE CARTEL OF THE SUNS A.K.A. CARTEL DE LOS SOLES; VLADIMIR PADRINO LOPEZ; MAIKEL JOSE MORENO PEREZ; NESTOR LUIS REVEROL TORRES; and TAREK WILLIAM SAAB, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT AGAINST THE INDIVIDUAL DEFENDANTS AND FARC
This matter is before the Court on Plaintiffs' motion for default judgment. [D.E. 70]. Defendants have not responded in opposition and the time to do so has since passed. Therefore the motion is now ripe for disposition. After careful consideration of the motion, relevant authorities, and the record presented, Plaintiffs' motion for default judgment should be GRANTED.
Plaintiffs initiated this lawsuit on February 22, 2021, with an eight-count complaint against Defendants Nicolas Maduro Moros, Vladimir Padrino Lopez, Maikel Jose Moreno Perez, Nestor Luis Reverol Torres, Tarek William Saab (“the Individual Defendants”), FARC, and the Cartel of the Suns for, inter alia, orchestrating the kidnapping, torture, and murder of decedent Fernando Alberto Alban in 2018. [D.E. 1]. On September 15, 2022, this Court adopted in full the report and recommendation to grant plaintiffs' motion for default judgment against the Cartel of the Suns. [D.E. 56; 58]. Now, plaintiffs are seeking default judgment against the remaining defendants, the Individual Defendants and FARC. [D.E. 70].
On March 2, 2021, this Court granted Plaintiffs' motion to serve the complaint and summons on FARC through Juvenal Ovidio Ricardo Palmera Pineda, a FARC leader, who is serving a sixty-year sentence in federal prison [D.E. 9]. On July 14, 2021, a Deputy Sheriff served Pineda with the complaint and the FARC summons. [D.E. 41]. After FARC failed to timely respond to the complaint by the August 4, 2021 deadline, the clerk entered a default judgment against FARC on October 22, 2021. [D.E. 50].
On September 23, 2022, this Court granted Plaintiffs' renewed motion to serve the Individual Defendants through alternative means after unsuccessful attempts to serve them via conventional methods. [D.E. 53; 62]. On September 26, 2022, Plaintiffs served each of the Individual Defendants directly through electronic means (email, text, WhatsApp, etc.) in accordance with this Court's order. [D.E. 62]. Furthermore, the service notice approved by this Court ran for four consecutive weeks in the Miami Herald, El Nuevo Herald, and Diario Las Americas. [D.E. 62-64].
The deadline to respond to the complaint expired on January 6, 2023, twenty-one days after the final publication on December 16, 2022, and the Individual Defendants failed to timely plea or otherwise defend the complaint. Accordingly, on January 10, 2023, the clerk entered a default judgment against the Individual Defendants. [D.E. 66]. Plaintiffs filed a motion for default judgment against FARC and the Individual Defendants on January 24, 2023, that is now ripe for disposition. [D.E. 70].
According to the complaint, as Nicolas Maduro has consolidated power in Venezuela, his country has fallen into disarray. In recent years, Venezuela has become a haven for international drug-trafficking, with the blessing and involvement of the Maduro regime. But Maduro does not act alone. In addition to controlling Venezuela, Plaintiffs claim that Maduro serves as the leader of the Cartel of the Suns, an elaborate criminal syndicate operating at all levels of the Venezuelan government that smuggles drugs abroad in order to keep the Maduro regime afloat amid international sanctions. The Cartel, in turn, has enlisted FARC-a Colombian paramilitary group designated a terrorist organization by the United States-to help execute its illicit activities in and outside of Venezuela. Together, these three entities (the Maduro Regime, the Cartel of the Suns, and FARC) comprise what Plaintiffs refer to as the “Maduro Criminal Enterprise.” [D.E. 1].
The Maduro Criminal Enterprise engages in a wide range of criminal activities that go beyond drug-trafficking. Senior members of the Venezuelan government have been indicted by the United States for recruiting international terrorists to plan attacks on U.S. territory. In 2017, two members of Maduro's inner circle were convicted of conspiracy to smuggle cocaine into the U.S., each being sentenced to 18 years in prison. The Department of Justice estimates that the Cartel of the Suns traffics somewhere between 200 and 250 metric tons of cocaine from Venezuela into the United States each year. But most egregious is the Maduro regime's treatment of Venezuelan citizens. The Department of State's 2019 Country Reports on Human Rights Practices: Venezuela, explains that the Maduro regime engages in acts of terrorism to intimidate its civilian population through means of arbitrary, extrajudicial killings by state security forces and regime-sponsored armed groups, forced disappearances, and the detention and torture of political opponents. [D.E. 1].
Fernando Alberto Alban was a politically active and outspoken critic of the Maduro regime. He ran an accounting business in Venezuela. Mr. Alban's political involvement eventually led to his immediate family fleeing to the U.S. from persistent death threats in Venezuela. While in the U.S., Mr. Alban brought his condemnation of the Maduro regime to the international stage: in September 2018, alongside other members of his political party, Justice First, Mr. Alban denounced the Maduro regime's human rights abuses to important political leaders at the United Nations General Assembly (UNGA), in New York. Plaintiffs allege that, while Mr. Alban was in New York, agents, at the behest of the Maduro regime, stalked him and tracked his every move, leading up to his return to Venezuela. [D.E. 1].
Shortly after Mr. Alban's participation at the UNGA, he flew back to Venezuela. Upon Mr. Alban's arrival at the Simon Bolivar International Airport, he was kidnapped by Maduro regime agents and taken to the Venezuelan secret police's (SEBIN) headquarters in downtown Caracas. These agents stole Mr. Alban's luggage, which was never returned to his family. Plaintiffs allege that during Mr. Alban's imprisonment, Maduro agents tortured him with painful electronic shocks, waterboarding, and other forms of torture. [D.E. 1].
Three days after Mr. Alban's kidnapping, these same agents threw his corpse out of a window from the tenth floor of the SEBIN headquarters, falsely claiming that he jumped off to commit suicide. Plaintiffs, Mr. Alban's surviving wife and two children, maintain that Mr. Alban was tortured and killed by government agents, and any claim by the Maduro regime that he committed suicide is false. [D.E. 1].
Hours after Mr. Alban was thrown from the window, named Defendant and Venezuelan attorney general Tarek Saab reported on state television that Mr. Alban had jumped from the tenth-floor bathroom of the SEBIN detention center and was “being investigated for” a variety of trumped-up charges including the “attempted assassination of President Nicolas Maduro.” The Miami Herald and other U.S. news outlets repeated Saab's claims about Mr. Alban's purported suicide and assassination attempt of Maduro. It was soon revealed, however, that the tenth-floor bathroom had no windows from which Mr. Alban could have jumped. Defendant Nestor Reverol Torres tried to cover the initial claim by tweeting that Mr. Alban had in fact been in the waiting room, not the bathroom, when he jumped. However, Torres provided no evidence to back this claim. Maduro-controlled media outlets also promulgated the claim that Mr. Alban housed child pornography on his phone, for which they provided no evidence. [D.E. 1].
Shortly after Mr. Alban's death, Plaintiffs allege that, on several occasions in October and November 2018, the Maduro regime raided the Alban family accounting business's office in Venezuela, stealing computers and equipment and causing the business to shut down altogether. Plaintiffs assert that these raids were meant for the Maduro regime to intimidate Mr. Alban's family from speaking out, even after purportedly murdering him. [D.E. 1].
Federal Rule of Civil Procedure 55 sets forth a two-step process for obtaining a default judgment. First, when a defendant fails to plead or otherwise defend a lawsuit, the clerk of court is authorized to enter a clerk's default. See Fed.R.Civ.P. 55(a). By defaulting, the defendants admit the well-plead facts in the complaint. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009).
After entry of the clerk's default, the court may enter a default judgment against a defendant so long as the defendant is neither an infant nor an incompetent person. Fed.R.Civ.P. 55(b)(2). A default judgment bars a defendant from contesting on appeal a plaintiff's well-pleaded allegations of fact. Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).
In entering a default judgment, a court must review the sufficiency of the complaint when determining whether a plaintiff is entitled to default judgment under Rule 55(b). See United States v Kahn, 164 Fed.Appx. 855, 858 (...
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