Carney v. Beracha

996 F. Supp. 2d 56, 2014 WL 533727, 2014 U.S. Dist. LEXIS 16460
CourtDistrict Court, D. Connecticut
DecidedFebruary 10, 2014
DocketNo. 3:12-CV-00180 (SRU)
StatusPublished
Cited by16 cases

This text of 996 F. Supp. 2d 56 (Carney v. Beracha) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carney v. Beracha, 996 F. Supp. 2d 56, 2014 WL 533727, 2014 U.S. Dist. LEXIS 16460 (D. Conn. 2014).

Opinion

STEFAN R. UNDERHILL, District Judge.

This case is ancillary to a Securities and Exchange Commission (“SEC”) enforcement proceeding against Francisco Illar-ramendi (“Illarramendi”) for violation of federal securities laws. The United States District Court for the District of Connecticut created a receivership estate and appointed John J. Carney (the “Receiver”) as receiver. In this action, the Receiver filed a complaint against defendants Moris Ber-acha (“Beraeha”) and several affiliated entities to recover property for distribution to Illarramendi’s victims and creditors.

Fractal Fund Management, Ltd., Fractal P Holding, Ltd., Fractal L Holding, Ltd. (collectively, “Fractal”), Northwestern International, Ltd. (“Northwestern”), Row-berrow Trading Corp. (“Rowberrow”), Bradleyville, Ltd. (“Bradleyville”), and Beraeha all move to dismiss the complaint for lack of personal jurisdiction, insufficient service of process, and/or improper venue. Defendants, not including Bradley-ville, also move to lift the anti-suit injunction imposed on them.

For the reasons stated below, I deny defendants Beraeha, Fractal, Northwestern, and Rowberrow’s motion to dismiss for lack of personal jurisdiction, insufficient service of process, improper venue, and for relief from the anti-suit injunction (doc. # 63) and deny without prejudice defendant Bradleyville’s motion to dismiss for lack of personal jurisdiction (doc. # 74).

I. Standard of Review

A. Motion to Dismiss for Lack of Personal Jurisdiction under Rule 12(b)(2)

A plaintiff bears the burden of showing that the court has personal jurisdiction over each defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). Where, as here, there has been no discovery on jurisdictional issues and the court is relying solely on the parties’ pleadings and affidavits, the [61]*61plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendant. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999).

B. Motion to Dismiss for Improper Venue under Rule 12(b)(8)

“The same standard of review is applied to a motion to dismiss for improper venue under Fed.R.Civ.P. 12(b)(3) as is applied to dismissals for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).” Marcus v. Am. Contract Bridge League, 562 F.Supp.2d 360, 362-63 (D.Conn.2008) (citing Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir.2005)). In defending against a motion to dismiss for improper venue, plaintiffs bear the burden of proving that venue is proper. Indymac Mortgage Holdings, Inc. v. Reyad, 167 F.Supp.2d 222, 237 (D.Conn.2001). When deciding a motion to dismiss for improper venue, courts may consider materials outside the pleadings. See, e.g., New Moon Skipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 26 (2d Cir.1997). Pursuant to 28 U.S.C. § 1406(a), the court may transfer or dismiss the case if venue is not proper. Should the defendant prevail on its motion, the court still retains discretion to decline to dismiss the case in favor of a transfer to any district where the ease could initially have been brought. See id. (citing Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993)).

C. Motion to Dismiss for Insufficient Service of Process under Rule 12(b)(5)

“Under Rule 12(b)(5), a party may file a motion to dismiss due to insufficiency of service of process.” Rzayeva v. United States, 492 F.Supp.2d 60, 74 (D.Conn.2007) (citing Fed.R.Civ.P. 12(b)(6); Greene v. Wright, 389 F.Supp.2d 416, 426 n. 2 (D.Conn.2005)). “A motion to dismiss pursuant to Rule 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and complaint on the defendants pursuant to Rule 4 of the Federal Rules, which sets forth the federal requirements for service.” Id. (citing Cole v. Aetna Life & Cas., 70 F.Supp.2d 106, 110 (D.Conn.1999)). “Once validity of service has been challenged, it becomes the plaintiffs burden to prove that service of process was adequate.” Id. (internal quotation marks omitted).

II. Background1

This action is an effort to recover approximately $170 million in transfers that defendants received from Illarramendi and receivership entities.2 The Receiver alleges that, for nearly five years, Beracha and his affiliates participated in numerous transactions with Illarramendi and the receivership entities. Beracha and his affiliated entities served as Illarramendi’s source of liquidity, which he needed to perpetuate his Ponzi scheme. Beracha was intimately involved in Illarramendi’s business operations and his support to Il-larramendi came in various forms. He raised money from investors to pour into [62]*62Illarramendi’s “investment vehicles” and would also pool money to be loaned to Illarramendi, often at exceedingly high interest rates, dictating the terms at which the receivership entities would be required to repay Beracha and his affiliates. He also introduced Illarramendi to Venezuelan officials and financiers and helped Illar-ramendi bribe at least one government official through the wiring of payments to certain defendant entities.

On March 7, 2011, the .United States Attorney for the District of Connecticut filed an information against Illarramendi, alleging that he had engaged in a Ponzi scheme. Illarramendi pled guilty and acknowledged as part of that plea that he had engaged in a scheme to hide from investors losses of several hundred million dollars. On June 14, 2011, the SEC began a civil enforcement action against Illarram-endi and others, alleging that they misappropriated investor assets in violation of securities laws. The SEC also sought an order freezing the assets of those defendants and the appointment of a Receiver over those assets. In 2011, U.S. District Judge Janet B. Arterton appointed John J. Carney as Receiver.

A. The Defendants

1. Beracha

Beracha is a Venezuelan national and a finance and management executive. He is one of the wealthiest people in Venezuela, owns homes in Venezuela, Florida, and New York City, and, according to Fractal Fund’s marketing materials, he splits his time between Caracas and New York City.

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996 F. Supp. 2d 56, 2014 WL 533727, 2014 U.S. Dist. LEXIS 16460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carney-v-beracha-ctd-2014.