Mala v. Banco Popular, P.R.

• Court: District Court, Virgin Islands
• Decided: February 7, 2024
• Docket: 3:23-cv-00017
• Status: Unknown

Opinion

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

KELLEY MALA, ) ) Plaintiff, ) ) v. ) Case No. 3:23-cv-0017 ) BANCO POPULAR, P.R., John Doe, Jane Doe, ) ABC Corporation, ) ) Defendants. ) )

ORDER BEFORE THE COURT is Defendant Banco Popular, P.R. (BPPR)’s Motion to Dismiss see for Failure to State a Claim and Lack of Subject-Matter Jurisdiction (Motion or Mot.) (ECF See No. 5), filed on May 18, 2023. Plaintiff filed an opposition to the motion, ECF Nos. 9 and 1 10, and said Defendant filed a reply thereto. ECF No. 11. This matter is ripe for adjudication. For the reasons stated below, the Court will grant Defendant BPPR’s motion to dismiss. I.

Plaintiff alleges that “on or about, January 23, 2018, Banco Popular did accept and effect a wire transfer, designed to fmther [sic] an obstruction of justice” Complaint (Compl.) at ¶ 6. He further alleges that “Banco Popular, on or about January 24, 2018, did cause to be Id deposited, $75,000.00, into account Number: 030-046122, Account name, ‘Envio Trans- Continentales LLC.’" . at ¶ 7. He then alleges: “On or about the same day and date, Banco th Popular, [sic] did cause to be wire transferred to, [sic] TD Bank, at 3885 NW 107 Avenue,

1 Plaintiff then filed a sur-reply (mistitled “Reply to Defendant’s [sic] Banco Popular’s Motion Opposition [sic] to Dismiss Complaint”) (ECF No. 15), without leave of Court, in violation of Local Rules of Civil Procedure Rule 7.1(a). In response to Plaintiff’s improperly filed document, Defendant Banco Popular, P.R., (BPPR) filed a motion styled, “Motion for Leave to File Sur-Reply or[,] in the alternative, Motion to Strike” (ECF No. 16), which was followed by Plaintiff’s filing of “Motion by Plaintiff for Leave to File Supplement [sic] Memorandum of Law and Claims as to Defendant BPPR[‘s] Motion to Dismiss (Doc#11 [sics]e eand #14)” (ECF No. 17). In view of the Court’s dismissal of the complaint herein, these pending motions will be rendered moot; thus, the Court does Case No. 3:23-cv-0017 Order Page 2 of 6 Id

Doral, FL 33178, the $75,000.00, to a beneficiary named, ‘CELL TRADE USA Inc.’” . at ¶ 8. According to Plaintiff, BPPR failed to submit a SAR (suspicious activity report) following Id see also id these transactions, “in violation of 18 U.S.C. §§ 1956(h), 1957 . . . Money Laundering Statutes of the United States.” . at ¶ 7 ( . at ¶ 8 (containing nearly identical language)). Plaintiff also alleges that an agent of the United States Drug Enforcement Administration Id averred in an affidavit that “the currency being deposited was causing issues because when 'they' (Banco Popular People), the [sic] found white powder . . . .” . at ¶ 9. Additionally, Id Plaintiff alleges “Banco Popular, and or its employees has been indicted by Federal Authorities based on same conduct and omissions.” . at ¶ 10. These are all the facts alleged Seeid by Plaintiff in support of his claim. The following paragraphs in the complaint contain Plaintiff’s prayer for relief. . at ¶¶ 11-13. Defendant BPPR moves to dismiss the complaint in this action for lack of subject matter jurisdiction and/or failure to state a claim. Mot. at 1. BPPR bases its jurisdictional argument upon its contention that Plaintiff lacks standing. Memorandum of Law in Support of Motion to Dismiss (Mem.) (ECF No. 6) at 4-I6I.. A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure Kehr Packages, Inc. v. Fidelcor, Inc. challenges the court’s jurisdiction over the case. The plaintiff bears the burden of proving see also DaimlerChrysler Corp. v. Cuno subject matter jurisdiction exists. , 926 F.2d 1406, 1409 (3d Cir. 1991); , 547 U.S. 332, 342 n.3 (2006) (“[T]he party asserting federal jurisdiction when it is challenged has the burden of establishing it.”). Under Rule 12(b)(1), a party may present either a facial or factual challenge to subject See Mortensen v. First Fed. Sav. & Loan Ass’n matter jurisdiction, but a factual challenge typically is brought only after the defendant files an answer or has engaged in discovery. , 549 F. Askew v. Trs. of Gen. Assembly of Church of the 2d 884, 891-92 (3d Cir. 1977). When a factual attack is procedurally premature, the Court Lord Jesus Christ of the Apostolic Faith Inc. usually treats the motion as a facial challenge. , 684 F. 3d 413, 417 (3d Cir. 2012) (“As the defendants had not answered and the parties had not engaged in discovery, the first motion to dismiss was facial.”). Case No. 3:23-cv-0017 Order Page 3 of 6

In a facial challenge, the Court “will consider ‘whether the allegations on the face of Nellom v. Delaware Cty. Domestic Rels. Section the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district Taliaferro v. Darby Twp. Zoning Bd. see court.’” , 145 F. Supp. 3d 470, 476 (E.D. Pa. also Davis v. Fox & Roach LP 2015) (quoting , 458 F.3d 181, 188 (3d Cir. 2006)); , Civil Action No. 20- 24-97, 2022 U.S. Dist. LEXIS 124890, at *4 (E.D. Pa. July 14, 2022) (“A facial challenge alleges a failure to plead jurisdictional CNA v. U.S. Humana, Inc. v. prerequisites, whereas a factual challenge alleges that the prerequisites for jurisdiction do Indivior Inc not in fact exist.” (citing , 535 F.3d 132, 139 (3d Cir. 2008))); ., Civil Action No. 20-4602; Civil Action No. 20-5014, 2021 U.S. Dist. LEXIS 137063, at *19-20 (E.D. Pa. July 22, 2021) (“A facial attack, as the adjective indicates, is an argument Const. Party of Pa v. Aichele that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court.” (citing , 757 F.3d 347, 358 (3d Cir. 2014))). Here, BPPR’s motion, contending that Plaintiff fails to allege an injury and/or that BPPR caused such injury sufficient to establiIsIhI .s tanding, presents a facial challenge. pro se ee, e.g., Morisseau v. Borough of N. Arlington As with all filings, the Court liberally construes Plaintiff’s complaint. S , Civil Action No. 16-8367, 2018 U.S. Dist. LEXIS 51701, at *32 (D.N.J. Mar. 28, 2018) (“Courts liberally construe documents filed by pro se plaintiffs, Erickson v. Pardus and hold the filings to less stringent standards than those drafted by attorneys.” (citing , 551 U.S. 89 (2007))). At the same time, “a pro se plaintiff ‘must still Nayak v. Voith Turbo, Inc plead the essential elements of his claim and is not excused from conforming to the standard Smith v. Soc. Sec. Admin. rules of civil procedure.’" ., No. 1:14-cv-01053, 2015 U.S. Dist. LEXIS McNeil v. United States 46469, at *10-12 (M.D. Pa. Apr. 9, 2015) (quoting , 54 F. Supp. 2d 451, 454 (E.D. Pa.1999) (citation omitted) (also citing , 508 U.S. 106, 113 see also (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should Faretta v. Calif. be interpreted so as to excuse mistakes by those who proceed without counsel.")); , 422 U.S. 806, 835 n.46 (1975) (noting that self-representation, in the criminal context, is not “a license not to comply with relevant rules of procedural and substantive law”). Case No. 3:23-cv-0017 Order Page 4 of 6

See also The title of the complaint filed in the above-captioned matter declares that it is a “Civil R.I.C.O. Complaint . . . .” Compl. at 1. Compl. at ¶ 9 (“Banco Popular continued in this coercive Civil R.I.C.O. Conspiracy, and official oppression.”). Nowhere within the complaint, 2 3 however, is the federal civil RICO statute mentioned or cited, nor are the elements of a civil RICO claim alleged or even alluded to. Nevertheless, construing all inferences in favor of Plaintiff, the Court will treat the complaint as alleging a federal civil RICO claim. BPPR challenges Plaintiff’s standing. As the Third Circuit Court of Appeals has noted: Standing comes in several varieties, and plaintiffs must satisfy all thatM aapiop lyv.. SAoemtnea ,s Itnacn.ding is constitutional, required by Article III. Some is prudential. And some is required by the particular statute at issue, like RICO. , 221 F.3d 472, 482-83 (3d Cir. 2000). RICO provides a prbivuatt-efo crause of acptriooxni monaltye for those who are "injured . . . bByr irdegaes ovn. P ohfx" .a B RoInCdO & v i Ionladteimon. .C 1o8 U.S.C. § 1964(c). That requires that the defendant be both tMhaei o and the cause of the plaintiff's injury. ., 553 U.S. 639, 654, 128 S. Ct. 2131, 170 L. Ed. 2d 1012 (2008); , 221 F.3d Devon Drive Lionville, LP v. Parke Bancorp, Inc see at 483. also St. Luke's Health Network, Inc. v. Lancaster Gen. Hosp ., 791 F. App’x 301, 306-07 (3d Cir. 2019); ., 967 F.3d 295, 300 (3d Cir. 2020) (“As distinct from Article III standing, a plaintiff bringing a civil RICO claim must additionally Ketner v. state an injury to business or property and ‘that a RICO predicate offense “not only was a ‘but Widell for’ cause of injury, but was the proximate cause as well.”’" (citations omitted)); , No. 5:20-cv-6360, 2021 U.S. Dist. LEXIS 125020, at *8 (E.D. Pa. July 6, 2021) (“Before the Court considers the sufficiency of a plaintiff's RICO claims under 18 U.S.C. § 1962, it must address the threshold question of the adequacy of the pleadings as they relate to RICO standing under § 1964(c). . . . To bring a civil RICO claim, a plaintiff must allege two statutory elements to confer standing: (1) that she suffered an injury to her ‘business or Brokerage Concepts, Inc. v. U.S. Healthcare, Inc. property’; and (2) that her injury was proximately caused by the defendants' violation of § Maio v. Aetna, Inc. 1962. . . .” (citing 18 U.S.C. § 1964(c); , 140 F.3d 494, 520-21 (3d Cir. 1998); , 221 F.3d 472, 482-83 (3d Cir. 2000))).

2 3 The federal civil RICO statute is codified at 18 U.S.C. § 1962(c). Plaintiff does identify several other federal statutes in the body of the complaint: 18 U.S.C. §§ 241, 242, 1503, Case No. 3:23-cv-0017 Order Page 5 of 6

see In the matter at bar, the Court agrees with BPPR that Plaintiff fails to allege any injury, Mem. at 18, let alone an injury to business or property. While Plaintiff identifies certain transactions allegedly conducted by BPPR, he fails to allege how those transactions affected or injured him. Plaintiff does not connect, in any way, the alleged transactions to himself. Despite Plaintiff’s claim that “BPPR’s own attorneys are fully aware and apprised of the facts and circumstances which describe Mala’s factual and economic injuries, [sic] caused by BPPR’s actions and omissions,” ECF No. 10 at 2-3, none of those “facts and circumstances” are alleged in the complaint in this matter. Thus, even accepting the allegations of the complaint as true and construing all reasonable inferences in favor of Plaintiff, the Court finds that Plaintiff’s failure to allege the two statutory elements to confer standing to assert a federal civil RICO claim renders Plaintiff without standing and deprives this Court of subject matter jurisdiction. Even if Plaintiff’s complaint can be construed to assert a federal claim other than civil RICO, the Court finds that Plaintiff still lacks standing. The Supreme Court of the United States has: Lujan , established that the “irreducible constitutional minimum” of standing consists of three elements. , 504 U. S. at 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351. The plaintiff must have (1) suffered an injuIrdy. ,in fact, (2) that is fairly traceable to the challenFgreide ncdosn odf utchte oEfa rtthhe, Idnecf.endant, and (3) that is likely to be redressed by a favorable judicial decision. at 560-561, 112 S. Ct. 2130, 119 L. Ed. 2d 351; , 528 FUW. S/.P, BatS ,1 I8n0c-.181D,a 1ll2a0s S. Ct. 693, 145 L. Ed. 2d 610. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. v. , 493 U. S. 215, 231, 110 WS. aCrtt. h59s6u,p 1r0a7 L. Ed. 2d 603 (1990). Where, as here, a case is at the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” Spokeo, Inc. v. Robins each element. , , at 518, 95 S. Ct. 2197, 45 L. Ed. 2d 343. , 578 U.S. 330, 338 (2016). Not only does Plaintiff fail to establish the more stringent requirements of RICO standing, but he also fails to establish Article III standing because he fails to allege an “injury in fact.” An “injury in fact” has been articulated Lujan v. Defenders of as “an invasion of a legally protected interest which is (a) concrete and particularized . . . and Wildlife (b) ‘actual or imminent, not “conjectural” or “hypothetical . . . ."’” , 504 U.S. 555, 560 (1992) (citations and footnote omitted). The complaint is Case No. 3:23-cv-0017 Order Page 6 of 6

cannot exercise subject matter jurisdiction. Consequently, the Court will grant BPPR’s motion. AOcRcDorEdRinEgDly, it is hereby that Defendant Banco Popular, P.R.’s MotionG tRo ADNisTmEiDss for Failure to State a ClaimO aRnDd ELRacEkD of Subject-Matter Jurisdiction (ECFD NISoM. 5IS) SisE D WITHOU; Tit PisR fEuJrUthDeIrC E that the Complaint (ECF No. 1) is ; it is furtherO RDERED MOOT ORDERED that all other pending motions are ; it is further STRICKEN that Plaintiff’s First Amended Complaint (ECF No. 24) is from the recoOrRdD foErR fEaDilure to comply with Fed. R. Civ. P. 15(a)(2); it is further that a copy of this Order shall be served upon Plaintiff Kelley Mala by first class mail return-receipt requested. Dated: Robert A. Molloy ROBERT A. MOLLOY February 7, 2024 /Csh/ief Judge