Jorge Yarur Bascuñan, Tarascona Corp. v. Daniel Yarur Elsaca, CristiáN Jara Taito, Oscar BretóN Dieguez, GM & E Asset Mgmt. S.A., Fintair Fin. Corp.

338 F. Supp. 3d 301
CourtDistrict Court, S.D. Illinois
DecidedSeptember 6, 2018
Docket15 Civ. 2009 (GBD)
StatusPublished
Cited by1 cases

This text of 338 F. Supp. 3d 301 (Jorge Yarur Bascuñan, Tarascona Corp. v. Daniel Yarur Elsaca, CristiáN Jara Taito, Oscar BretóN Dieguez, GM & E Asset Mgmt. S.A., Fintair Fin. Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jorge Yarur Bascuñan, Tarascona Corp. v. Daniel Yarur Elsaca, CristiáN Jara Taito, Oscar BretóN Dieguez, GM & E Asset Mgmt. S.A., Fintair Fin. Corp., 338 F. Supp. 3d 301 (S.D. Ill. 2018).

Opinion

GEORGE B. DANIELS, United States District Judge:

*306Plaintiff Jorge Yarur Bascuñan, as well as several entities he owns and controls (the "Bascuñan Entities"), bring this action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. , against Defendants Daniel Yarur Elsaca, several entities he owns and controls, and two of his associates, Cristián Jara Taito ("Jara") and Oscar Bretón Dieguez ("Bretón").1 (Second Am. Compl. ("SAC"), ECF No. 76, ¶¶ 6-26.) Plaintiff alleges that Defendants violated and conspired to violate RICO by engaging in numerous predicate acts of racketeering activity, including mail fraud, wire fraud, bank fraud, money laundering, and violations of the Travel Act, with the purpose and intent of misappropriating millions of dollars Plaintiff inherited from his late parents in the late 1990s. (Id. ¶¶ 1-3, 185-234, 236-39.) Plaintiff also asserts several state law causes of action for unjust enrichment, constructive trust, and accounting. (Id. ¶¶ 186-234, 236-39, 241-45, 247-50, 252-58.)

Defendants previously moved to dismiss this action for lack of personal jurisdiction and failure to state a claim under RICO, among other grounds. (See Mot. to Dismiss, ECF No. 35; Mem. in Supp. of Mot. to Dismiss, ECF No. 36,) After this Court heard oral argument on the motion, but before a decision was rendered, the Supreme Court issued an opinion in RJR Nabisco, Inc. v. European Cmty. , --- U.S. ----, 136 S.Ct. 2090, 195 L.Ed.2d 476 (2016). In RJR Nabisco , the Court held, among other things, that RICO does not apply extraterritorially and a private party suing under RICO must therefore "allege and prove a domestic injury to business or property." Id. at 2111.

Applying a residence-based test for determining whether Plaintiff suffered a domestic injury, this Court found that Plaintiff had failed to allege an economic injury in the United States, as opposed to in Chile or the British Virgin Islands ("BVI"), where he and the Bascuñan Entities "reside."2 See Bascuñan v. Elsaca (Bascuñan I ), No. 15 Civ. 2009 (GBD), 2016 WL 5475998, at *6 (S.D.N.Y. Sept. 28, 2016). Accordingly, this Court granted Defendants' motion to dismiss, id. at *7, from which Plaintiff timely appealed. (See Notice of Appeal, ECF No. 68.)

On appeal, the Second Circuit vacated Bascuñan I and remanded the case to this Court for further proceedings. See Bascuñan v. Elsaca (Bascuñan II ), 874 F.3d 806, 824-25 (2d Cir. 2017). In doing so, the Second Circuit held as a matter of first impression that "when a foreign plaintiff maintains tangible property in the United States, the misappropriation of that property constitutes a domestic injury." Id. at 814. On remand, this Court granted Plaintiff leave to amend his complaint to meet the new domestic injury pleading standards set forth in Bascuñan II . (See Order dated Dec. 13, 2017, ECF No. 75, at 1.)

Defendants now move to dismiss the SAC in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. to Dismiss, ECF No. 84.) Defendants argue dismissal is warranted *307because, among other things, the SAC fails to allege a domestic injury with respect to much of Defendants' alleged conduct. (See Mem. in Supp. of Mot. to Dismiss ("Mem."), ECF No, 85, at 19-21.) Defendants also contend that to the extent the SAC does allege a domestic injury under RICO, it impermissibly relies on an extraterritorial application of the RICO predicate statutes. (Id. at 21-24.) Finally, Defendants argue that the SAC fails to adequately allege a continuous pattern of racketeering activity, as required to state a claim under RICO. (See id. at 24-26.)

Because the SAC fails to allege a domestic injury, impermissibly relies on an extraterritorial application of RICO, and fails to adequately allege a continuous pattern of racketeering activity, Defendants' motion to dismiss is GRANTED.

I. FACTUAL BACKGROUND3

A. The Bascuñan Estate

Plaintiff, a citizen and resident of Chile, inherited a substantial family fortune (the "Bascuñan Estate") following the death of his parents in the 1990s. (SAC ¶¶ 7, 35.) The Bascuñan Estate consists largely of companies and assets owned by Plaintiff, including a substantial stake in Banco de Crédito e Inversiones ("BCI"), a Chilean bank formerly headed by Plaintiff's father and in which he held a controlling interest prior to his death. (Id. ¶ 35.)

Unable to manage his own finances due to various physical and emotional ailments, Plaintiff relied on a financial manager initially hired by his parents. (Id. ¶¶ 36-37.) In 1999, however, Plaintiff engaged his cousin, Defendant Elsaca, to manage the Bascuñan Estate. (Id. ¶¶ 37, 39.) Elsaca, also a citizen and resident of Chile, is an economist and licensed accountant by trade, and the former head of the Superintendencia de Valores y Seguros (de Chile), which the SAC describes as the Chilean equivalent of the U.S. Securities and Exchange Commission. (Id. ¶¶ 14, 37.) Plaintiff agreed to pay Elsaca an annual salary for managing the Bascuñan Estate. (Id. ¶ 39.)

Soon thereafter, Elsaca convinced Plaintiff to grant him a power of attorney ("POA") that conferred broad authority on Elsaca to manage the Bascuñan Estate and enter into transactions on its behalf. (Id. ¶ 40.) The POA did not provide Elsaca with any additional compensation for his services. (Id. ¶ 43.) Instead, Elsaca paid himself a monthly salary for managing the Bascuñan Estate, as he and Bascuñan had agreed. (Id. ) Plaintiff alleges that for the ten years Elsaca was charged with managing the Bascuñan Estate, he and his co-conspirators engaged in a multifaceted fraudulent scheme to misappropriate money, securities, and other assets from the Bascuñan Estate to the tune of approximately $70 million. (Id. ¶¶ 3, 45.)

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Related

Bascuñán v. Elsaca
927 F.3d 108 (Second Circuit, 2019)

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338 F. Supp. 3d 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jorge-yarur-bascunan-tarascona-corp-v-daniel-yarur-elsaca-cristian-jara-ilsd-2018.